Last updated on March 14th, 2023 at 04:20 pm
Title 22 – Foreign Relations–Volume 1
CHAPTER I – DEPARTMENT OF STATE
SUBCHAPTER A – GENERAL
PART 1 – INSIGNIA OF RANK
§ 1.1 Office of the Secretary of State.
The official flag indicative of the office of Secretary of State shall be as follows: On a blue rectangular field a white disk bearing the official coat of arms of the United States adopted by the act of June 20, 1782, in proper colors. In each of the four corners a white five-pointed star with one point upward. The colors and automobile flag to be the same design, adding a white fringe. For the colors a cord and tassel of blue and white to be added. The sizes to be in accordance with military and naval customs.
§ 1.2 Office of the Deputy Secretary of State.
The official flag indicative of the office of the Deputy Secretary of State shall be as follows: On a white rectangular field a blue disk bearing the official coat of arms of the United States adopted by act of June 20, 1782, in proper colors. In each of the four corners a five-pointed star with one point upward. The colors and automobile flag to be the same design, adding a blue fringe. For the colors a cord and tassel of white in accordance with military and naval customs.
§ 1.3 Office of the Under Secretaries of State.
The official flag indicative of the office of the Under Secretaries of State shall be as follows: On a red rectangular field a white disk bearing the official coat of arms of the United States adopted by act of June 20, 1782, in proper colors. In each of the four corners a white five-pointed star with one point upward. The colors and automobile flag to be the same design, adding a white fringe. For the colors a cord and tassel of white and red to be added. The sizes to be in accordance with military and naval customs.
PART 2 – PROTECTION OF FOREIGN DIGNITARIES AND OTHER OFFICIAL PERSONNEL
§ 2.1 Designation of personnel to carry firearms and exercise appropriate power of arrest.
(a) The Deputy Assistant Secretary of State for Security is authorized to designate certain employees of the Department of State and the Foreign Service, as well as employees of other departments and agencies detailed to and under the supervision and control of the Department of State, as Security Officers, as follows.
(1) Persons so designated shall be authorized to carry firearms when engaged in the performance of the duties prescribed in section (1) of the act of June 28, 1955, 69 Stat. 188, as amended. No person shall be so designated unless he has either qualified in the use of firearms in accordance with standards established by the Deputy Assistant Secretary of State for Security, or in accordance with standards established by the department or agency from which he is detailed.
(2) Persons so designated shall also be authorized, when engaged in the performance of duties prescribed in section (1) of the act of June 28, 1955, 69 Stat. 188, as amended, to arrest without warrant and deliver into custody any person violating the provisions of section 111 or 112 of title 18, United States Code, in their presence or if they have reasonable grounds to believe that the person to be arrested has committed or is committing such felony.
(b) When the Under Secretary of State for Management determines that it is necessary, persons designated under paragraph (a) of this section shall be authorized to provide protection to an individual who has been designated by the President to serve as Secretary of State, prior to his appointment, or to a departing Secretary of State. In providing such protection, they are authorized to exercise the authorities described in paragraphs (a) (1) and (2) of section. Such protection shall be for the period or periods determined necessary by the Under Secretary of State for Management, except that in the case of a departing Secretary of State, the period of protection under this paragraph shall in no event exceed 30 calendar days from the date of termination of that individual’s incumbency as Secretary of State.
(c) When the Under Secretary of State for Management determines that it is necessary, persons designated under paragraph (a) of this section shall be authorized to provide protection to a departing United States Representative to the United Nations. In providing such protection, they are authorized to exercise the authorities described in paragraphs (a) (1) and (2) of this section. Such protection shall be for the period or periods determined necessary by the Under Secretary of State for Management, except that the period of protection under this paragraph shall in no event exceed 30 calendar days from the date of termination of that individual’s incumbency as United States Representative to the United Nations.
§ 2.2 Purpose.
Section 1116(b)(2) of title 18 of the United States Code, as added by Pub. L. 92-539, An Act for the Protection of Foreign Officials and Official Guests of the United States (86 Stat. 1071), defines the term “foreign official” for purposes of that Act as “any person of a foreign nationality who is duly notified to the United States as an officer or employee of a foreign government or international organization, and who is in the United States on official business, and any member of his family whose presence in the United States is in connection with the presence of such officer or employee.” Section 1116(c)(4) of the same Act defines the term “official guest” for the purposes of that Act as “a citizen or national of a foreign country present in the United States as an official guest of the Government of the United States pursuant to designation as such by the Secretary of State.” It is the purpose of this regulation to specify the officer of the Department of State who shall be responsible for receiving notification of foreign officials under the Act and determining whether persons are “duly notified” to the United States and who shall be responsible for processing official guest designations by the Secretary of State.
§ 2.3 Notification of foreign officials.
(a) Any notification of a foreign official for purposes of section 1116(b)(2) of Title 18 of the United States Code shall be directed by the foreign government or international organization concerned to the Chief of Protocol, Department of State, Washington, DC 20520. For persons normally accredited to the United States in diplomatic or consular capacities and also for persons normally accredited to the United Nations and other international organizations and in turn notified to the Department of State, the procedure for placing a person in the statutory category of being “duly notified to the United States” shall be the current procedure for accreditation, with notification in turn when applicable. The Chief of the Office of Protocol will place on the roster of persons “duly notified to the United States” the names of all persons currently accredited and, when applicable, notified in turn, and will maintain the roster as part of the official files of the Department of State adding to and deleting therefrom as changes in accreditations occur.
(b) For those persons not normally accredited, the Chief of Protocol shall determine upon receipt of notification, by letter from the foreign government or international organization concerned, whether any person who is the subject of such a notification has been duly notified under the Act. Any inquiries by law enforcement officers or other persons as to whether a person has been duly notified shall be directed to the Chief of Protocol. The determination of the Chief of Protocol that a person has been duly notified is final.
§ 2.4 Designation of official guests.
The Chief of Protocol shall also maintain a roster of persons designated by the Secretary of State as official guests. Any inquiries by law enforcement officers or other persons as to whether a person has been so designated shall be directed to the Chief of Protocol. The designation of a person as an official guest is final. Pursuant to section 2658 of title 22 of the U.S.C., the authority of the Secretary of State to perform the function of designation of official guests is hereby delegated to the Chief of Protocol.
§ 2.5 Records.
The Chief of Protocol shall maintain as a part of the official files of the Department of State a cumulative roster of all persons who have been duly notified as foreign officials or designated as official guests under this part. The roster will reflect the name, position, nationality, and foreign government or international organization concerned or purpose of visit as an official guest and reflect the date the person was accorded recognition as being “duly notified to the United States” or designated as an official guest and the date, if any, of termination of such status.
PART 3 – GIFTS AND DECORATIONS FROM FOREIGN GOVERNMENTS
§ 3.1 Purpose.
These regulations provide basic standards for employees of the Department of State, the United States International Development Cooperation Agency (IDCA), the Agency for International Development (AID), and the International Communication Agency (USICA), their spouses (unless separated) and their dependents to accept and retain gifts and decorations from foreign governments.
§ 3.2 Authority.
(a) Section 515(a)(1) of the Foreign Relations Authorization Act of 1978 (91 Stat. 862-866), approved August 17, 1977, (hereafter referred to as “the Act”) amended section 7342 of title 5, U.S. Code (1976), making substantial changes in the law relating to the acceptance and retention of gifts and decorations from foreign governments.
(b) 5 U.S.C. 7342(g) authorizes each employing agency to prescribe regulations as necessary to carry out the new law.
§ 3.3 Definitions.
When used in this part, the following terms have the meanings indicated:
(a) Employee means (1) an officer or employee of the Department, AID, IDCA, or USICA, including an expert or consultant, however appointed, and (2) a spouse (unless separated) or a dependent of such a person, as defined in section 152 of the Internal Revenue Code of 1954 (26 U.S.C. 152).
(b) Foreign government means: (1) Any unit of foreign governmental authority, including any foreign national, State, local, or municipal government; (2) any international or multinational organization whose membership is composed of any unit of foreign government as described in paragraph (b)(1) of this section; (3) any agent or representative of any such unit or organization, while acting as such;
(c) Gift means a tangible or intangible present (other than a decoration) tendered by, or received from, a foreign government;
(d) Decoration means an order, device, medal, badge, insignia, emblem or award tendered by, or received from, a foreign government;
(e) Minimal value means retail value in the United States at the time of acceptance of $100 or less, except that on January 1, 1981, and at 3-year intervals thereafter, “minimal value” is to be redefined in regulations prescribed by the Administrator of General Services, in consultation with the Secretary of State, to reflect changes in the consumer price index for the immediately preceding 3-year period.
§ 3.4 Restriction on acceptance of gifts and decorations.
(a) An employee is prohibited from requesting or otherwise encouraging the tender of a gift or decoration from a foreign government. An employee is also prohibited from accepting a gift or decoration from a foreign government, except in accordance with these regulations.
(b) An employee may accept and retain a gift of minimal value tendered and received as a souvenir or mark of courtesy, subject, however, to the following restrictions –
(1) Where more than one tangible item is included in a single presentation, the entire presentation shall be considered as one gift, and the aggregate value of all items taken together must not exceed “minimal value”.
(2) The donee is responsible for determining that a gift is of minimal value in the United States at the time of acceptance. However, should any dispute result from a difference of opinion concerning the value of a gift, the employing agency will secure the services of an outside appraiser to establish whether the gift is one of “minimal value”. If, after an appraisal has been made, it is established that the value of the gift in question is $200 or more at retail in the United States, the donee will bear the costs of the appraisal. If, however, the appraised value is established to be less than $200, the employing agency will bear the costs.
(c) An employee may accept a gift of more than minimal value when (1) such gift is in the nature of an educational scholarship or medical treatment, or (2) it appears that to refuse the gift would likely cause offense or embarrassment or otherwise adversely affect the foreign relations of the United States, except that a tangible gift of more than minimal value is deemed to have been accepted on behalf of the United States and, upon acceptance, shall become the property of the United States.
(d) An employee may accept gifts of travel or expenses for travel taking place entirely outside the United States (such as transportation, food, and lodging) of more than minimal value if such acceptance is appropriate, consistent with the interests of the United States, and permitted by the employing agency. Except where the employing agency has specific interests which may be favorably affected by employee travel wholly outside the United States, even though it would not normally authorize its employees to engage in such travel, the standards normally applied to determine when proposed travel will be in the best interests of the employing agency and of the United States Government shall be applied in approving acceptance of travel or travel expenses offered by a foreign government.
(1) There are two circumstances under which employees may accept gifts of travel or expenses:
(i) When the employee is issued official travel orders placing him or her in the position of accepting travel or travel expenses offered by a foreign government which are directly related to the authorized purpose of the travel; or
(ii) When the employee’s travel orders specifically anticipate the acceptance of additional travel and travel expenses incident to the authorized travel.
(2) When an employee is traveling under circumstances described in paragraph (d)(1)(i) of this section, that is, without specific instructions authorizing acceptance of additional travel expenses from a foreign government, the employee must file a report with the employing angency under the procedures prescribed in § 3.6.
(e) Since tangible gifts of more than minimal value may not lawfully become the personal property of the donee, all supervisory officials shall, in advising employees of their responsibilities under the regulations, impress upon them their obligation to decline acceptance of such gifts, whenever possible, at the time they are offered, or to return them if they have been sent or delivered without a prior offer. All practical measures, such as periodic briefings, shall be taken to minimize the number of gifts which employees must deposit and which thus become subject to disposal as provided by law and regulation. Employees should not accept gifts of more than minimal value on the assumption that refusal would be likely to “cause offense or embarrassment or otherwise adversely affect the foreign relations of the United States”. In many instances it should be possible, by explanation of the prohibition against an employee’s retention of such gifts, to avoid consequences of acceptance, including possible return of the gift to the donor. Refusal of the gift at the inception should typically be regarded as in the interest both of the foreign government donor and the U.S. Government.
§ 3.5 Designation of officials and offices responsible for administration of foreign gifts and decorations.
(a) The Act effects a significant degree of decentralization of administration relative to the disposal of foreign gifts and decorations which become U.S. Government property. Each agency is now responsible for receiving from its employees deposits of foreign gifts of more than minimal value, as well as of foreign decorations not meeting the statutory criteria for retention by the recipient. The agency is also responsible for disposing of this property by return to the donor, for retaining it in the agency if official use of it is approved, for reporting to the General Services Administration within 30 calendar days after deposit items neither disposed of nor retained, and for assuming custody, proper care and handling of such property pending removal from that custody pursuant to disposal arrangements by the General Services Administration. The Secretary of State, however, is made responsible for providing guidance to other executive agencies in the development of their own regulations to implement the Act, as well as for the annual publication of lists of all gifts of more than minimal value deposited by Federal employees during the preceding year. [See § 3.5(c).] Authority for the discharge of the Secretary’s responsibilities is delegated by these regulations to the Chief of Protocol.
(b) The Office of the Chief of Protocol retains primary responsibility for administration of the Act within the Department of State. That Office will, however, serve as the depository only for those foreign gifts and decorations which are turned in by State Department employees. The Director of Personnel Services of the USICA will have responsibility for administration of the Act within that agency and will serve as the depository of foreign gifts and decorations. Employees of the other foreign affairs agencies must deposit with their respective agencies any gifts or decorations deposit of which is required by law.
(c) Any questions concerning the implementation of these regulations or interpretation of the law should be directed to the following:
(1) For the Department of State, to the Office of Protocol or to the Office of the Assistant Legal Adviser for Management, as appropriate;
(2) For IDCA, to the Office of the General Counsel;
(3) For AID, to the Assistant General Counsel for Employee and Public Affairs; and
(4) For USICA, to the General Counsel.
§ 3.6 Procedure to be followed by employees in depositing gifts of more than minimal value and reporting acceptance of travel or travel expenses.
(a) An employee who has accepted a tangible gift of more than minimal value shall, within 60 days after acceptance, relinquish it to the designated depository office for the employing agency for disposal or, with the approval of that office, deposit it for official use at a designated location in the employing agency or at a specified Foreign Service post. The designated depository offices are:
(1) For the Department of State, the Office of Protocol;
(2) For IDCA, the General Services Division of the Office of Management Planning in AID;
(3) For AID, the General Services Division of the Office of Management Planning; and
(4) For USICA, the Office of Personnel Services.
(b) At the time that an employee deposits gifts of more than minimal value for disposal or for official use pursuant to paragraph (a) of this section, or within 30 days after accepting a gift of travel or travel expenses as provided in § 3.4(d) (unless the gift of such travel or travel expenses has been accepted in accordance with specific instructions from the Department or agency), the employee shall file a statement with the designated depository office with the following information:
(1) For each tangible gift reported:
(i) The name and position of the employee;
(ii) A brief description of the gift and the circumstances justifying acceptance;
(iii) The identity of the foreign government and the name and position of the individual who presented the gift;
(iv) The date of acceptance of the gift;
(v) The donee’s best estimate in specific dollar terms of the value of the gift in the United States at the time of acceptance; and
(vi) Disposition or current location of the gift. (For State Department employees, forms for this purpose are available in the Office of Protocol.)
(2) For each gift of travel or travel expenses:
(i) The name and position of the employee;
(ii) A brief description of the gift and the circumstances justifying acceptance; and
(iii) The identity of the foreign government and the name and position of the individual who presented the gift.
(c) The information contained in the statements called for in paragraph (b) of this section is needed to comply with the statutory requirement that, not later than Janaury 31 of each year, the Secretary of State publish in the
§ 3.7 Decorations.
(a) Decorations tendered in recognition of active field service in time of combat operations or awarded for other outstanding or unusually meritorious performance may be accepted, retained, and worn by an employee, subject to the approval of the employing agency. Without such approval, the decoration is deemed to have been accepted on behalf of the United States and, like tangible gifts of more than minimal value, must be deposited by the employee with the designated depository office for the employing agency within sixty days after acceptance, for retention for official use or for disposal in accordance with § 3.9.
(b) The decision as to whether a decoration has been awarded for outstanding or unusually meritorious performance will be made:
(1) For the Department of State, by the supervising Assistant Secretary of State or comparable official, except that, in the case of a decoration awarded to an Assistant Secretary or other officer of comparable or higher rank, the decision shall be made by the Office of Protocol;
(2) For IDCA, by the Assistant Director for Administration;
(3) For AID, by the Director of Personnel Management; and
(4) For USICA, by the Supervising Associate Director, the General Counsel, or the Director of the Office of Congressional and Public Liaison (for domestic employees), and by the Director of Area Offices (for overseas employees).
(c) To justify an affirmative decision, a statement from the foreign government, preferably in the form of a citation which shows the specific basis for the tender of the award, should be supplied. An employee who has received or been tendered a decoration should forward to the designated depository office of the employing agency a request for review of the case. This request should contain a statement of circumstances of the award and such documentation from the foreign government as has accompanied it. The depository office will obtain the decision of the cognizant office as to whether the award meets the statutory criteria and thus whether the decoration may be retained and worn. Pending receipt of that decision, the decoration should remain in the custody of the recipient.
§ 3.8 Approval of retention of gifts or decorations with employing agency for official use.
(a) At the request of an overseas post or an office within the employing agency, a gift or decoration deemed to have been accepted on behalf of the United States may be retained for official use. Such retention should be approved:
(1) For the Department of State, by the Chief of Protocol;
(2) For IDCA, by AID’s Director of Management Operations;
(3) For AID, by the Director of Management Operations; and
(4) For USICA, by the Associate Director for Management.
(b) Items approved for official use must be accounted for and safeguarded as Federal property at all times under standard Federal property management procedures. Within 30 days after the official use of a gift has been terminated, the gift or decoration shall be deposited with the designated depository office of the employing agency to be held pending completion of disposal arrangements by the General Services Administration.
§ 3.9 Disposal of gifts and decorations which become the property of the United States.
(a) Gifts and decorations which have been reported to an employing agency shall either be returned to the donor or kept in safe storage pending receipt of instructions from the General Services Administration for transfer, donation or other disposal under the provisions of the Federal Property and Administrative Services Act of 1949, 63 Stat. 377, as amended, and the Federal Property Management Regulations (41 CFR part 101-49). The employing agency shall examine each gift or decoration and the circumstances surrounding its donation and assess whether any adverse effect upon the foreign relations of the United States might result from a return of the gift (or decoration) to the donor, which shall be the preferred means of disposal. If this is not deemed feasible, the employing agency is required by GSA regulations to report deposit of the gift or decoration within 30 calendar days, using Standard Form 120, Report of Excess Personal Property and, as necessary, Standard Form 120A, Continuation Sheet, and citing section 7342 of title 5, U.S. Code (1976), on the reporting document. Such reports shall be submitted to the General Services Administration, Washington National Capital Region (WDPO), Attention: Federal Property Resources Service, Seventh and D Streets, SW., Washington, DC 20407.
(b) No gift or decoration deposited with the General Services Administration for disposal may be sold without the approval of the Secretary of State, upon a determination that the sale will not adversely affect the foreign relations of the United States. When depositing gifts or decorations with the designated depository office of their employing agency, employees may indicate their interest in participating in any subsequent sale of the items by the Government. Before gifts and decorations may be considered for sale by the General Services Administration, however, they must first have been offered for transfer to Federal agencies and for donation to the States. Consequently, employees should understand that there is no assurance that an item will be offered for sale, or, if so offered, that it will be feasible for an employee to participate in the sale. Employees are reminded in this connection that the primary aim of the Act is to discourage employees’ acceptance of gifts of more than minimal value.
§ 3.10 Enforcement.
(a) Each employing agency is responsible under the Act for reporting to the Attorney General cases in which there is reason to believe that one of its employees has violated the Act. The Attorney General in turn may file a civil action in any United States District Court against any Federal employee who has knowingly solicited or accepted a gift from a foreign government in violation of the Act, or who has failed to deposit or report such gift, as an Act required by the Act. In such case, the court may assess a maximum penality of the retail value of a gift improperly solicited or received, plus $5,000.
(b) Supervisory officials at all levels within employing agencies shall be responsible for providing periodic reorientation of all employees under their supervision on the basic features of the Act and these regulations, and for ensuring that those employees observe the requirements for timely reporting and deposit of any gifts of more than minimal value they may have accepted.
(c) Employees are advised of the following actions which may result from failure to comply with the requirements of the Act and these regulations:
(1) Any supervisor who has substantial reason to believe that an employee under his or her supervision has violated the reporting or other compliance provisions of the Act shall report the facts and circumstances in writing to the senior official in charge of administration within the cognizant bureau or office or at the post abroad. If that official upon investigation decides that an employee who is the donee of a gift or is the recipient of travel or travel expenses has, through actions within the employee’s control, failed to comply with the procedures established by the Act and these regulations, the case shall be referred to the Attorney General for appropriate action.
(2) In cases of confirmed evidence of a violation, whether or not such violation results in the taking of action by the Attorney General, the senior administrative official referred to in paragraph (c)(1) of this section as responsible for forwarding a violation report to the Attorney General shall institute appropriate disciplinary action against an employee who has failed to (i) Deposit tangible gifts within 60 days after acceptance, (ii) account properly for the acceptance of travel expenses or (iii) comply with the Act’s requirements respecting disposal of gifts and decorations retained for official use.
(3) In cases where there is confirmed evidence of a violation, but no evidence that the violation was willful on the part of the employee, the senior administrative official referred to in paragraph (c)(1) of this section shall institute appropriate disciplinary action of a lesser degree than that called for in paragraph (c)(2) of this section in order to deter future violations by the same or another employee.
§ 3.11 Responsibility of chief of mission to inform host government of restrictions on employees’ receipt of gifts and decorations.
A special provision of the Act requires the President to direct every chief of a United States diplomatic mission to inform the host government that it is a general policy of the United States Government to prohibit its employees from receiving gifts of more than minimal value or decorations that have not been tendered “in recognition of active field service in time of combat operations or awarded for other outstanding or unusually meritorious performance.” Accordingly, all Chiefs of Mission shall in January of each year conduct a thorough and explicit program of orientation aimed at appropriate officials of the host government concerning the operation of the Act.
§ 3.12 Exemption of grants and other foreign government assistance in cultural exchange programs from coverage of foreign gifts and decorations legislation.
The Act specifically excludes from its application grants and other forms of assistance “to which section 108A of the Mutual Educational and Cultural Exchange Act of 1961 applies”. See 22 U.S.C. 2558 (a) and (b) for the terms and conditions under which Congress consents to the acceptance by a Federal employee of grants and other forms of assistance provided by a foreign government to facilitate the participation of such employee in a cultural exchange.
PART 3a – ACCEPTANCE OF EMPLOYMENT FROM FOREIGN GOVERNMENTS BY MEMBERS OF THE UNIFORMED SERVICES
§ 3a.1 Definitions.
For purposes of this part –
(a) Applicant means any person who requests approval under this part to accept any civil employment (and compensation therefor) from a foreign government and who is: (1) Any retired member of the uniformed services;
(2) Any member of a Reserve component of the Armed Forces; or
(3) Any member of the commissioned Reserve Corps of the Public Health Service.
(b) Uniformed services means the Armed Forces, the commissioned Regular and Reserve Corps of the Public Health Service, and the commissioned corps of the National Oceanic and Atmospheric Administration.
(c) Armed Forces means the Army, Navy, Air Force, Marine Corps, and Coast Guard.
(d) Secretary concerned means: (1) The Secretary of the Army, with respect to retired members of the Army and members of the Army Reserve;
(2) The Secretary of the Navy, with respect to retired members of the Navy and the Marine Corps, members of the Navy and Marine Corps Reserves, and retired members of the Coast Guard and members of the Coast Guard Reserve when the Coast Guard is operating as a service in the Navy;
(3) The Secretary of the Air Force, with respect to retired members of the Air Force and members of the Air Force Reserve;
(4) The Secretary of Transportation, with respect to retired members of the Coast Guard and members of the Coast Guard Reserve when the Coast Guard is not operating as a service in the Navy;
(5) The Secretary of Commerce, with respect to retired members of the commissioned corps of the National Oceanic and Atmospheric Administration; and
(6) The Secretary of Health, Education, and Welfare, with respect to retired members of the commissioned Regular Corps of the Public Health Service and members of the commissioned Reserve Corps of the Public Health Service.
§ 3a.2 Requirement for approval of foreign government employment.
(a) The United States Constitution (Article I, section 9, clause 8) prohibits the acceptance of civil employment with a foreign government by an officer of the United States without the consent of Congress. Congress has consented to the acceptance of civil employment (and compensation therefor) by any person described in § 3a.1(b) subject to the approval of the Secretary concerned and the Secretary of State (37 U.S.C. 801, Note). Civil employment with a foreign government may not be accepted without such approval by any person so described.
(b) The Secretary of State has no authority to approve employment with a foreign government by any officer of the United States other than a person described in § 3a.1(a). The acceptance of employment with a foreign government by any other officer of the United States remains subject to the constitutional prohibition described in paragraph (a) of this section.
(c) Any person described in § 3a.1(a) who accepts employment with a foreign government without the approval required by this section or otherwise obtaining the consent of Congress is subject to forfeiture of retired pay to the extent of his or her compensation from the foreign government, according to the Comptroller General of the United States (44 Comp. Gen. 139 (1964)). This forfeiture is in addition to any other penalty which may be imposed under law or regulation.
§ 3a.3 Authority to approve or disapprove proposed foreign government employment.
The Director, Bureau of Politico-Military Affairs, is authorized to approve or disapprove any request by an applicant for approval under this part to accept civil employment (and compensation therefor) from a foreign government. The Director may delegate this authority within the Bureau of Politico-Military Affairs, Department of State.
§ 3a.4 Procedure for requesting approval.
(a) An applicant must submit a request for approval of foreign government employment to the Secretary concerned, whose approval is also required by law for the applicant’s acceptance of civil employment from a foreign government. The request must contain information concerning the applicant’s status, the nature of the proposed employment in as much detail as possible, the identity of and relationship to the foreign government concerned, and other matters as may be required by the Secretary concerned.
(b) Requests approved by the Secretary concerned will be referred to the Director, Bureau of Politico-Military Affairs, for approval. Requests received by the Director, Bureau of Politico-Military Affairs, directly from an applicant will be initially forwarded to the Secretary concerned, or his designee, for approval of disapproval.
§ 3a.5 Basis for approval or disapproval.
Decisions by the Director, Bureau of Politico-Military Affairs, under this part shall be based on whether the applicant’s proposed employment with a foreign government would adversely affect the foreign relations of the United States, in light of the applicant’s official status as a retiree or reservist.
§ 3a.6 Notification of approval.
The Director, Bureau of Politico-Military Affairs, will notify the Secretary concerned when an applicant’s proposed foreign government employment is approved. Notification of approval to the applicant will be made by the Secretary concerned or his designee.
§ 3a.7 Notification of disapproval and reconsideration.
(a) The Director, Bureau of Politico-Military Affairs, will notify the applicant directly when an applicant’s proposed foreign employment is disapproved, and will inform the Secretary concerned.
(b) Each notification of disapproval under this section must include a statement of the reasons for the disapproval, with as much specificity as security and foreign policy considerations permit, together with a notice of the applicant’s right to seek reconsideration of the disapproval under paragraph (c) of this section.
(c) Within 60 days after receipt of the notice of disapproval, an applicant whose request has been disapproved may submit a request for reconsideration by the Director, Bureau of Politico-Military Affairs. A request for reconsideration should provide information relevant to the reasons set forth in the notice of disapproval.
(d) The disapproval of a request by the Director, Bureau of Politico-Military Affairs, will be final, unless a timely request for reconsideration is received. In the event of a request for reconsideration, the Director, Bureau of Politico-Military Affairs, will make a final decision after reviewing the record of the request. A final decision after reconsideration to approve the applicant’s proposed employment with a foreign government will be communicated to the Secretary concerned as provided in § 3a.6. A final decision after reconsideration to disapprove the applicant’s proposed employment with a foreign government will be communicated directly to the applicant as provided in paragraph (a) of this section and the Secretary concerned will be informed. The Director’s authority to make a final decision after reconsideration may not be redelegated.
§ 3a.8 Change in status.
In the event that an applicant’s foreign government employment approved under this part is to be materially changed, either by a substantial change in duties from those described in the request upon which the original approval was based, or by a change of employer, the applicant must obtain further approval in accordance with this part for such changed employment.
PART 4 – NOTIFICATION OF FOREIGN OFFICIAL STATUS
§ 4.1 General.
In accordance with Article 10 of the Vienna Convention on Diplomatic Relations and Article 24 of the Vienna Convention on Consular Relations, diplomatic missions must notify the Office of Protocol immediately upon the arrival, in the United States, of any foreign government officer or employee (including domestics and family members), who are serving at diplomatic missions, consular posts, or miscellaneous foreign government offices. If the employee is already in the United States in some other capacity, the notification should be made upon assumption of duties. This initial notification requirement also includes all U.S. citizens and permanent resident aliens who are employed by foreign missions.
§ 4.2 Procedure.
Notification and subsequent changes are made as follows:
(a) Diplomatic and career consular officers and their dependents: Form DSP-110, Notification of Appointment of Foreign Diplomatic Officer and Career Consular Officer;
(b) All other foreign government employees who are serving at diplomatic missions, consular posts, or miscellaneous foreign government offices and their dependents: Form DSP-111, Notification of Appointment of Foreign Government Employee.
(c) Honorary consular officers: Form DSP-112, Notification of Appointment of Honorary Consular Officer.
(d) Missions should use Form DSP-113, Notification of Change – Identification Card Request, to promptly inform the Department of State of any change in the status of officers or employees of the missions and their family members originally reported to Protocol, or to apply for an identification card.
(e) Upon termination of employment of any diplomatic or consular officer, honorary consular officer, embassy or consular employee, or miscellaneous foreign government staff member, a Form DSP-115, Notice of Termination of Diplomatic, Consular, or Foreign Government Employment, must be submitted to the Office of Protocol.
PART 5 – ORGANIZATION
§ 5.1 Introduction.
This part provides information to the public as required by the Freedom of Information Act, 5 U.S.C. 552(a)(1).
§ 5.2 Central and field organization.
(a) The central organization of the Department of State is prescribed by the State Department Basic Authorities Act of 1956, as amended (Pub. L. 84-885), codified at 22 U.S.C. 2651 et seq. and the Foreign Affairs Manual (see § 5.5).
(b) As used in this part, the term “Department of State” includes all offices within the Department in Washington, its domestic field offices in the United States, all U.S. diplomatic and consular posts throughout the world, and U.S. missions to international organizations unless otherwise specified.
(c) Any person desiring information concerning a matter handled by the Department of State, or any person desiring to make a submittal or request in connection with such a matter, should communicate either orally or in writing with the appropriate office. If the office receiving the communication does not have jurisdiction to handle the matter, the communication, if written, will be forwarded to the proper office, or, if oral, the person will be advised how to proceed. When the submittal or request from a member of the public consists of a formal application for one of the documents, privileges, or other benefits provided for in the laws administered by the Department of State, or in the regulations implementing these laws, the member of the public should follow the instructions on the form as to preparation and place of submission.
(d) From time to time, the Secretary of State will, to the extent authorized by law, delegate statutory or other authorities to subordinate officers, as authorized by 22 U.S.C. 2651a(a)(4). The Department will generally publish such delegations of authority in the
§ 5.3 Rules of procedure, description of forms available, or the places at which forms may be obtained.
Rules of procedure regarding the following listed matters may be consulted under the corresponding regulations referenced in § 5.4, or obtained upon application to the offices listed below. Forms pertaining to the following listed matters, and instructions relating thereto may also be obtained at the offices indicated in the following table 1 to § 5.3:
Table 1 to § 5.3
| Subject matter | Office | Address |
|---|---|---|
| Access to Information and Records | Bureau of Administration | Office of Information Programs and Services (IPS), U.S. Department of State, State Annex 2 (SA-2), 515 22nd Street NW, Washington, DC, Suite 8100, 20522-0208, Fax: (202) 261-8579, URL: For passport records and records of the Office of the Inspector General, please see 22 CFR 171.4(a). |
| Appointment of Foreign Service Officers | Board of Examiners for the Foreign Service | Board of Examiners for the Foreign Service, Department of State, SA-1, H-518, 2401 E Street NW. Washington, DC 20522. |
| Authentications | Office of Authentications | U.S. Department of State, 600 19th Street NW, Washington, DC 20006. |
| Civil Rights | Office of Civil Rights | Office of Civil Rights (S/OCR), 2201 C Street NW, Suite 7428, Washington, DC 20520. |
| Forms | ||
| International educational and cultural exchange programs | Bureau of Educational and Cultural Affairs | For ECA-funded programs, Department of State, 2200 C Street NW, Washington, DC 20522-0500, For the Exchange Visitor Program, Department of State, SA-4E, Room E-B001 – 2201 C Street NW, Washington, DC 20520. |
| International Traffic in Arms Regulations | Directorate of Defense Trade Controls | U.S. Department of State, Directorate of Defense Trade Controls, 2401 E Street NW, SA-1, Room H1200, Washington, DC 20037. |
| U.S. Passports | Passport Services | |
| Organizational chart | ||
| Procurements and assistance, domestic/international acquisition and federal assistance policy | Office of the Procurement Executive | U.S. Department of State, A/OPE (SA-15, Suite 1060), Washington, DC 20522, FAX 703-875-6155. |
| Protection and welfare of U.S. citizens, intercountry adoption, international child abduction, and other consular services abroad | Overseas Citizen Services | |
| Treaties and international agreements | Office of the Assistant Legal Adviser for Treaty Affairs | |
| Visa issuance | Office of Visa Services |
(a) The regulations of the Department of State required to be published under the provisions of the Administrative Procedure Act are found in the Code of Federal Regulations (generally in title 22) and in the
(b) The following paragraphs (b)(1) through (18) are citations to regulations within the scope of this section:
(1) Appointment of Foreign Service Officers. 22 CFR part 11 et seq.
(2) Schedule of Fees for Consular Services. 22 CFR part 22.
(3) Claims and Stolen Property. 22 CFR part 31 et seq.
(4) Issuance of Visas. 22 CFR parts 41-42 et seq.
(5) Nationality and Passports. 22 CFR part 50 et seq.
(6) International Educational and Cultural Exchanges. 22 CFR part 62 et seq.
(7) Protection and Welfare of Americans Abroad. 22 CFR part 71 et seq.
(8) Other Consular Services Abroad. 22 CFR part 92 et seq.
(9) Chemical Weapons Convention Regulations. 22 CFR part 103.
(10) International Trafficking in Persons. 22 CFR part 104.
(11) International Traffic in Arms Regulations. 22 CFR part 121 et seq.
(12) Certificates of Authentication. 22 CFR part 131 et seq.
(13) Civil Rights, including implementation of Sections 504 and 508 of the Rehabilitation Act of 1973. 22 CFR part 141 et seq.
(14) Department of State Acquisition Regulation. 48 CFR chapter 6.
(15) Availability of Information and Records to the Public. 22 CFR part 171.
(16) Service of Process. 22 CFR part 172.
(17) Availability of Public Diplomacy Program Material in the United States. 22 CFR part 173.
(18) Coordination, Reporting, and Publication of International Agreements. 22 CFR part 181.
(c) The regulations listed in paragraph (b) of this section are supplemented from time to time by amendments appearing initially in the
§ 5.5. The Foreign Affairs Manual and the Foreign Affairs Handbook.
The Department articulates official guidance, including procedures and policies, on matters relating to Department management and personnel in the Foreign Affairs Manual (FAM) and the Foreign Affairs Handbook (FAH) series. Some of these directives are promulgated pursuant to statute, such as the Secretary of State’s authority to prescribe regulations for the Foreign Service as provided in Section 206 of the Foreign Service Act of 1980, as amended, 22 U.S.C. 3926. The FAMs and FAHs that are publicly available are located on the Department’s public website, at https://fam.state.gov/.
PART 7 [RESERVED]
PART 9 – SECURITY INFORMATION REGULATIONS
§ 9.1 Basis.
The regulations in this part, taken together with 32 CFR part 2001 and Volume 5 of the Department’s Foreign Affairs Manual, provide the basis for the security classification program of the U.S. Department of State (“the Department”) implementing Executive Order 13526 on Classified National Security Information (“the Executive Order” or “the Order”).
§ 9.2 Objective.
The objective of the Department’s classification program is to ensure that national security information is protected from unauthorized disclosure, but that it remains classified only to the extent and for such a period as is necessary.
§ 9.3 Senior agency official.
The Executive Order requires that each agency that originates or handles classified information designate a Senior Agency Official to direct and administer its information security program. The Department’s senior agency official is the Under Secretary of State for Management. The Senior Agency Official is assisted in carrying out the provisions of the Executive Order and the Department’s information security program by the Assistant Secretary for Diplomatic Security, the Assistant Secretary for Administration, and the Deputy Assistant Secretary for Global Information Services.
§ 9.4 Original classification.
(a) Definition. Original classification is the initial determination that certain information requires protection against unauthorized disclosure in the interest of national security (i.e., national defense or foreign relations of the United States), together with a designation of the level of classification.
(b) Classification levels. (1) Top Secret shall be applied to information the unauthorized disclosure of which reasonably could be expected to cause exceptionally grave damage to the national security that the original classification authority is able to identify or describe.
(2) Secret shall be applied to information the unauthorized disclosure of which reasonably could be expected to cause serious damage to the national security that the original classification authority is able to identify or describe.
(3) Confidential shall be applied to information the unauthorized disclosure of which reasonably could be expected to cause damage to the national security that the original classification authority is able to identify or describe.
(c) Classification requirements and considerations. (1) Information may not be considered for classification unless its unauthorized disclosure could reasonably be expected to cause identifiable or describable damage to the national security in accordance with section 1.2 of the Executive Order, and it pertains to one or more of the following:
(i) Military plans, weapons systems, or operations;
(ii) Foreign government information;
(iii) Intelligence activities (including covert action), intelligence sources or methods, or cryptology;
(iv) Foreign relations or foreign activities of the United States, including confidential sources;
(v) Scientific, technological, or economic matters relating to the national security;
(vi) United States Government programs for safeguarding nuclear materials or facilities;
(vii) Vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans, or protection services relating to the national security; or
(viii) The development, production, or use of weapons of mass destruction.
(2) In classifying information, the public’s interest in access to government information must be balanced against the need to protect national security information.
(3) The unauthorized disclosure of foreign government information is presumed to cause damage to national security.
(d) Classification limitations and prohibitions. (1) In no case shall information be classified in order to conceal violations of law, inefficiency, or administrative error, or to prevent embarrassment to a person, organization, or agency, to restrain competition, or to prevent or delay the release of information that does not require protection in the interest of the national security.
(2) A reference to classified documents that does not directly or indirectly disclose classified information may not be classified or used as a basis for classification.
(3) Only information owned by, produced by or for, or under the control of the U.S. Government may be originally classified.
(e) Duration of classification. (1) Information shall be classified for as long as is required by national security considerations, subject to the limitations set forth in section 1.5 of the Executive Order. When it can be determined, a specific date or event for declassification in less than 10 years shall be set by the original classification authority at the time the information is originally classified. If a specific date or event for declassification cannot be determined, information shall be marked for declassification 10 years from the date of the original decision, unless the original classification authority determines that the sensitivity of the information requires that it be marked for declassification for up to 25 years from the date of the original decision except for:
(i) Information that would reveal the identity of a confidential human source or a human intelligence source, or key design concepts of weapons of mass destruction, in which case the duration of classification shall be up to 75 years and shall be designated with the markings “50X1-HUM” and “50X2-WMD,” respectively; and
(ii) Specific information incorporated into the classification guide under section 2.2(e) of the Executive Order relating to exemptions from automatic declassification.
(2) An original classification authority may extend the duration of classification up to 25 years from the date of origin of the document, change the level of classification, or reclassify specific information only when the standards and procedures for classifying information under the Executive Order are met.
(3) No information may remain classified indefinitely. Information marked for an indefinite duration of classification under predecessor orders, such as “Originating Agency’s Determination Required” (OADR) or classified information that contains incomplete declassification instructions or lacks declassification instructions, shall be declassified in accordance with Part 3 of the Order.
(a) Authority for original classification of information as Top Secret may be exercised by the Secretary and those officials delegated this authority in writing by the Secretary. Such authority has been delegated to the Deputy Secretaries, the Under Secretaries, the Counselor, Assistant Secretaries and equivalents; Chiefs of Mission and U.S. representatives to international organizations; and certain other officers within the Department and at posts abroad.
(b) Authority for original classification of information as Secret or Confidential may be exercised only by the Secretary, the Senior Agency Official, and those officials delegated this authority in writing by the Secretary or the Senior Agency Official. Such authority has been delegated to Deputy Assistant Secretaries, Principal Officers at consulates general and consulates abroad, and certain other officers within the Department and at posts abroad. In the absence of the Secret or Confidential classification authority, the person designated to act for that official may exercise that authority.
§ 9.6 Derivative classification.
(a) Definition. Derivative classification is: the incorporating, paraphrasing, restating, or generating in new form information that is already classified and the marking of the new material consistent with the classification of the source material, or the marking of the information in accordance with an authorized classification guide. Duplication or reproduction of existing classified information is not derivative classification. Persons who apply classification markings derived from source material or as directed by a classification guide need not possess original classification authority.
(b) Responsibility. Information classified derivatively from other classified information shall be classified and marked in accordance with instructions from an authorized classifier or in accordance with an authorized classification guide and shall comply with the standards set forth in sections 2.1-2.2 of the Executive Order and 32 CFR 2001.22. The duration of classification of a document classified by a derivative classifier using a classification guide shall not exceed 25 years except for:
(1) Information that would reveal the identity of a confidential human source or a human intelligence source (50X1-HUM) or key design concepts of weapons of mass destruction (50X2-WMD), and
(2) Specific information incorporated into the classification guide under section 2.2(e) of the Executive Order relating to exemptions from automatic declassification.
(c) Department of State Classification Guide. The Department of State Classification Guide (DSCG) is the primary authority for the classification of information in documents created by Department of State personnel. The Guide is classified “Confidential” and is found on the Department of State’s classified Web site.
§ 9.7 Identification and marking.
(a) Classified information shall be marked pursuant to the standards set forth in section 1.6 of the Executive Order, 32 CFR part 2001, subpart C, and internal Department guidance in 5 Foreign Affairs Manual.
(b) Foreign government information shall retain its original classification markings or be marked and classified at a U.S. classification level that provides a degree of protection at least equivalent to that required by the entity that furnished the information. Foreign government information retaining its original classification markings need not be assigned a U.S. classification marking provided the responsible agency determines that the foreign government markings are adequate to meet the purposes served by U.S. classification markings.
(c) Information assigned a level of classification under predecessor executive orders shall be considered as classified at that level of classification despite the omission of other required markings.
(d) Prior to public release, all declassified records shall be appropriately marked to reflect their declassification.
§ 9.8 Classification challenges.
(a) Challenges. Authorized holders of information pertaining to the Department of State who believe that its classification status is improper are expected and encouraged to challenge the classification status of the information. Such persons making challenges to the classification status of information shall not be subject to retribution for such action. Informal, usually oral, challenges are encouraged. Formal challenges to classification actions shall be in writing to an original classification authority (OCA) with jurisdiction over the information and a copy of the challenge shall be sent to the Office of Information Programs and Services (IPS) of the Department of State, SA-2, 515 22nd St. NW., Washington, DC 20522-8100. The Department (either the OCA or IPS) shall provide an initial response in writing within 60 calendar days.
(b) Appeal procedures and time limits. A negative response may be appealed to the Department’s Appeals Review Panel (ARP) and should be sent to: Chairman, Appeals Review Panel, c/o Director, Office of Information Programs and Services/Appeals Officer, at the IPS address given above. The appeal shall include a copy of the original challenge, the response, and any additional information the appellant believes would assist the ARP in reaching its decision. The ARP shall respond within 90 calendar days of receipt of the appeal. A negative decision by the ARP may be appealed to the Interagency Security Classification Appeals Panel (ISCAP) referenced in section 5.3 of Executive Order 13526. If the Department fails to respond to a formal challenge within 120 calendar days or if the ARP fails to respond to an appeal within 90 calendar days, the challenge may be sent directly to the ISCAP.
(c) Pre-publication review materials. The provisions for classification challenges do not apply to material required to be submitted for pre-publication review, or other administrative action, pursuant to a non-disclosure agreement.
§ 9.9 Declassification and downgrading.
(a) Declassification processes. Declassification of classified information may occur:
(1) After review of material in response to a Freedom of Information Act (FOIA) request, mandatory declassification review request, discovery request, subpoena, classification challenge, or other information access or declassification request;
(2) After review as part of the Department’s systematic declassification review program;
(3) As a result of the elapse of the time or the occurrence of the event specified at the time of classification;
(4) By operation of the automatic declassification provisions of section 3.3 of the Executive Order with respect to material more than 25 years old.
(b) Downgrading. When material classified at the Top Secret level is reviewed for declassification and it is determined that classification continues to be warranted, a determination shall be made whether downgrading to a lower level of classification is appropriate. If downgrading is determined to be warranted, the classification level of the material shall be changed to the appropriate lower level.
(c) Authority to downgrade and declassify. (1) Classified information may be downgraded or declassified by:
(i) The official who originally classified the information if that official is still serving in the same position and has original classification authority;
(ii) A successor in that capacity if that individual has original classification authority;
(iii) A supervisory official of either if the supervisory official has original classification authority;
(iv) Other Department officials specifically delegated declassification authority in writing by the Secretary or the Senior Agency Official; or
(v) The Director of the Information Security Oversight Office pursuant to Sec. 3.1(a) of E.O. 13526.
(2) The Department shall maintain a record of Department officials specifically designated as declassification and downgrading authorities.
(d) Declassification in the public interest. Although information that continues to meet the classification criteria of the Executive Order or a predecessor order normally requires continued protection, in some exceptional cases the need to protect information may be outweighed by the public interest in disclosure of the information. When such a question arises, it shall be referred to the Secretary or the Senior Agency Official for decision on whether, as an exercise of discretion, the information should be declassified and disclosed. This provision does not amplify or modify the substantive criteria or procedures for classification or create any substantive or procedural right subject to judicial review.
(e) Public disclosure of declassified information. Declassification of information is not, by itself, authorization for its public disclosure. Previously classified information that is declassified may be exempt from public disclosure under the FOIA, the Privacy Act, or various statutory confidentiality provisions. There also may be treaties or other international agreements that would preclude public disclosure of declassified information.
§ 9.10 Mandatory declassification review
(a) Scope. All information classified under E.O. 13526 or predecessor orders shall be subject to mandatory declassification review upon request by a member of the public or a U.S. government employee or agency with the following exceptions:
(1) Information originated by the incumbent President or the incumbent Vice President; the incumbent President’s White House staff or the incumbent Vice President’s staff; committees, commissions, or boards appointed by the incumbent President; other entities within the Executive Office of the President that solely advise and assist the incumbent President;
(2) Information that is the subject of pending litigation; and
(3) Information that has been reviewed for declassification within the past two years which need not be reviewed again, but the requester shall be given appeal rights.
(b) Requests. Requests for mandatory declassification review should be addressed to the Office of Information Programs and Services, U.S. Department of State, SA-2, 515 22nd St. NW., Washington, DC 20522-8100.
(c) Description of information. In order to be processed, a request for mandatory declassification review must describe the document or the material containing the information sought with sufficient specificity to enable the Department to locate the document or material with a reasonable amount of effort. Whenever a request does not sufficiently describe the material, the Department shall notify the requester that no further action will be taken unless additional description of the information sought is provided.
(d) Refusal to confirm or deny existence of information. The Department may refuse to confirm or deny the existence or nonexistence of requested information whenever the fact of existence or nonexistence is itself classified.
(e) Processing. In responding to mandatory declassification review requests, the Department shall make a review determination as promptly as possible, but in no case more than one year from the date of receipt of the request, and notify the requester accordingly. When the requested information cannot be declassified in its entirety, the Department shall release all meaningful portions that can be declassified and that are not exempt from disclosure on other grounds.
(f) Other agency information. When the Department receives a request for information in its possession that was originally classified by another agency, it shall refer the request and the pertinent information to the other agency unless that agency has agreed that the Department may review such information for declassification on behalf of that agency. In any case, the Department is responsible for responding to the requester with regard to any responsive information, including other-agency information, unless a prior arrangement has been made with the originating agency.
(g) Foreign government information. In the case of a request for material containing foreign government information, the Department shall determine whether the information may be declassified and may, if appropriate, consult with the relevant foreign government on that issue. If the Department is not the agency that initially received the foreign government information, it may consult with the original receiving agency.
(h) Documents or material containing RD or Transclassified Foreign Nuclear Information (TFNI). Documents or material containing RD or TFNI will be submitted to DOE for review. Documents containing FRD will be submitted to DOE or DoD for review.
(i) Appeals. Any denial of a mandatory declassification review request may be appealed to the ARP. A denial by the ARP of a mandatory declassification review appeal may be further appealed to the ISCAP. A failure of the Department to make a determination on a mandatory declassification review request within one year from the date of its receipt or to respond to an appeal of a denial by the ARP within 180 calendar days of its receipt may be appealed directly to the ISCAP.
§ 9.11 Systematic declassification review.
The Director of the Office of Information Programs and Services shall be responsible for conducting a program for systematic declassification review of historically valuable records that: were exempted from the automatic declassification provisions of section 3.3 of the Executive Order; or will soon become subject to the automatic declassification provisions of section 3.3 of the Order. The Director shall prioritize such review in accordance with priorities established by the National Declassification Center.
§ 9.12 Sharing other-agency classified information.
The long-standing third-agency rule has required prior originating agency approval before a receiving agency could further disseminate classified information. Under the Executive Order, unless the originating agency indicates on the material that prior approval is required and provided that the criteria for access under section 4.1(a) of the Order are met, a receiving agency may further disseminate classified information in documents created subsequent to the effective date of the Order to another agency or U.S. entity without consultation with the originating agency. “U.S. entity” includes cleared state, local, tribal, and private sector entities. Similarly, under certain circumstances, receiving agencies may pass such classified information to foreign governments.
§ 9.13 Access to classified information by historical researchers and certain former government personnel.
(a) The restriction in E.O. 13526 and predecessor orders on limiting access to classified information to individuals who have a need-to-know the information may be waived, under the conditions set forth below, for persons who: are engaged in historical research projects; have served as President or Vice President; have occupied senior policy-making positions in the Department of State or other U.S. government agencies to which they were appointed or designated by the President or the Vice President. It does not include former Foreign Service Officers as a class or persons who merely received assignment commissions as Foreign Service Officers, Foreign Service Reserve Officers, Foreign Service Staff Officers, and employees.
(b) Requests by such persons must be submitted in writing to the Office of Information Programs and Services at the address set forth above and must include a general description of the records sought, the time period covered by the records that are the subject of the request, and an explanation why access is sought. Requests for access by such requesters may be granted if:
(1) The Secretary or the Senior Agency Official determines in writing that access is consistent with the interests of national security;
(2) The requester agrees in writing to safeguard the information from unauthorized disclosure or compromise;
(3) The requester submits a statement in writing authorizing the Department to review any notes and manuscripts created as a result of access;
(4) The requester submits a statement in writing that any information obtained from review of the records will not be disseminated without the express written permission of the Department;
(c) If a requester uses a research assistant, the requester and the research assistant must both submit a statement in writing acknowledging that the same access conditions set forth in paragraphs (b)(2) through (b)(4) of this section apply to the research assistant. Such a research assistant must be working for the applicant and not gathering information for publication on his or her own behalf.
(d) Access granted under this section shall be limited to items the official originated, reviewed, signed, or received while serving as a Presidential or Vice Presidential appointee or designee or as President or Vice President.
(e) Such requesters may seek declassification and release of material to which they have been granted access under this section through either the FOIA or the mandatory declassification review provisions of E.O. 13526. Such requests shall be processed in the order received, along with other FOIA and mandatory declassification review requests, and shall be subject to the fees applicable to FOIA requests.
§ 9.14 Pre-publication review of writings by former Department personnel.
The Department provides pre-publication review of writings on foreign relations topics by former Department personnel, including contractors and detailees, who had security clearances to try to ensure that former personnel do not violate their agreements on non-disclosure of classified national security information in such writings. Manuscripts (including articles, speeches, books, etc.) should be sent to the Director, Office of Information Programs and Services, 515 22nd St. NW., Washington, DC 20522-8100. Questions about pre-publication clearance may be sent to [email protected].
§ 9.15 Assistance to the Historian’s Office.
All elements of the Department shall assist the Historian’s Office in its preparation of the Foreign Relations of the United States (FRUS) series such as by providing prompt access to and, when possible, declassification of information deemed appropriate for inclusion in the FRUS.
§ 9.16 Safeguarding.
Specific controls on the use, processing, storage, reproduction, and transmittal of classified information within the Department to provide protection for such information and to prevent access by unauthorized persons are contained in Volume 12 of the Department’s Foreign Affairs Manual.
PART 9a – SECURITY INFORMATION REGULATIONS APPLICABLE TO CERTAIN INTERNATIONAL ENERGY PROGRAMS; RELATED MATERIAL
These regulations implement Executive Order 11932 dated August 4, 1976 (41 FR 32691, August 5, 1976) entitled “Classification of Certain Information and Material Obtained from Advisory Bodies Created to Implement the International Energy Program.”
§ 9a.2 General policy.
(a) The United States has entered into the Agreement on an International Energy Program of November 18, 1974, which created the International Energy Agency (IEA). This program is a substantial factor in the conduct of our foreign relations and an important element of our national security. The effectiveness of the Agreement depends significantly upon the provision and exchange of information and material by participants in advisory bodies created by the IEA. Confidentiality is essential to assure the free and open discussion necessary to accomplish the tasks assigned to those bodies.
(b) These regulations establish procedures for the classification, declassification, storage, access, and dissemination of certain information related to the International Energy Program.
§ 9a.3 Scope.
These regulations apply to all information and material classified by the United States under the provisions of E.O. 11932, dated August 4, 1976 entitled “Classification of Certain Information and Material Obtained From Advisory Bodies Created To Implement The International Energy Program.”
§ 9a.4 Classification.
(a) Section 1 of E.O. 11932, August 4, 1976 directs that information and material obtained pursuant to the International Energy Program and which requires protection against unauthorized disclosure in the interest of the national defense or foreign relations of the United States shall be classified pursuant to Executive Order 11652.
(b) Information and material, including transcripts, records, and communications, in the possession of the United States Government which has been obtained pursuant to (1) section 252(c)(3), (d)(2) or (e)(3) of the Energy Policy and Conservation Act (89 Stat. 871, 42 U.S.C. 6272(c)(3), (d)(2), (e)(3)), or (2) The Voluntary Agreement and Program Relating to the International Energy Program (40 FR 16041, April 8, 1975), or (3) the Voluntary Agreement and Plan of Action to Implement the International Energy Program (41 FR 13998, April 1, 1976), or (4) Any similar Voluntary Agreement and Program entered into under the Energy Policy and Conservation Act shall be reviewed by an officer of the Department of State with classifying authority for the purpose of determining whether such information or material should be classified pursuant to E.O. 11652. If the officer determines that the information or material warrants classification, he shall assign it the appropriate classification. Such information or material may be exempted from the General Declassification Schedule established by section 5 of Executive Order No. 11652 if it was obtained by the United States on the understanding that it be kept in confidence, or if it might otherwise be exempted under section 5(B) of such Order.
(c) In classifying such information or material, officers of the Department of State shall follow the standards in E.O. 11652 and the provisions of 22 CFR 9.5 through 9.8.
§ 9a.5 Declassification and downgrading.
The provisions of E.O. 11652, 22 CFR 9.9 through 9.15, and 9a.4(b) shall govern declassification and downgrading of such information or material.
§ 9a.6 Marking.
(a) The provisions of 22 CFR 9.15 through 9.19 shall govern the marking of information or material classified under the provisions of these regulations, except that the following stamp shall be used as appropriate:
(b) If the information or material does not qualify for exemption from the General Declassification Schedule, ordinary stamps and marking may be used.
§ 9a.7 Access.
(a) Except as set forth in this section, access to information or material classified under the provisions of these regulations shall be governed by the provisions of 22 CFR 9.20 through 9.25.
(b) Classified information and material which was created by or in connection with an advisory body to the IEA may be made available to participants in such advisory body and their colleagues in accordance with the following subsections.
(c) Such information and material classified “Confidential” may be made available for review to participants in the meeting of the advisory body in which it was developed or discussed. Where participants are acting as representatives of companies or of the IEA Secretariat, such information and material may be made available for review to employees or other representatives of, or counsel for, such companies or Secretariat: Provided, That such person is determined by an appropriate officer of the Department to be trustworthy and to have a need for access to the particular classified information sought in connection with the performance of duties in furtherance of the purposes of the IEA, including the furnishing of legal advice to such participants.
(d) Such information and material classified “Confidential” may be left in the custody of such participants or other persons who may review it for reasonable period of time: Provided, That an appropriate officer of the Department determines that it will be protected from unauthorized disclosure by adequate security safeguards. Such information or material may not be reproduced by those permitted to review it pursuant to this section without the written consent of an officer of the Department with classifying authority.
(e) Such information and material classified other than “Confidential” under E.O. 11652 may be made available for review only to participants in the meeting in which it was developed or discussed; it must be reviewed in the presence of an official of the United States Government with an appropriate security clearance granted by the Department, and may not be left in the custody of such participants.
§ 9a.8 Physical protection.
Except as provided in § 9a.7, the physical protection of information or material classified under this regulation shall be governed by the appropriate provisions of 22 CFR 9.45 through 9.49.
PART 9b – REGULATIONS GOVERNING DEPARTMENT OF STATE PRESS BUILDING PASSES
§ 9b.1 Press access to the Department of State.
(a) Media correspondents without valid Department of State press building passes shall have access to the Main State building identical to that enjoyed by members of the public.
(b) Media correspondents holding valid Department of State press building passes:
(1) May enter and have access 24 hours a day, during regular working hours, outside regular working hours, on weekends and on holidays, without an appointment, to the reception area of the Diplomatic Lobby, C Street Mezzanine area, press booths (Room 2310), press briefing room (Room 2118), and when in operation, the Office of Press Relations (Room 2109).
(2) May enter and have access without an appointment, on the basement level or on the first and second floors, to the cafeteria, post office, banks, concessionaries, barber shop, dry cleaners and the Foreign Affairs Recreation Association offices for the purposes for which they are established and when they are in operation.
(3) May not escort non-passholders into the Department of State building.
(c) Media correspondents, with or without a Department of State press building pass, may enter areas above the second floor of the Main State building only if the correspondent is invited by a Department employee to attend a specific social or official function in an office located above the second floor. Permission to enter areas above the second floor is strictly limited to direct passage to and from the appointment location of the Department of State employee, or the office or reception room where the function takes place.
(d) Possession of State Department press building pass does not confer access to or other privileges at other Federal buildings. It is not to be construed as official United States Government recognition, approval or accreditation of a correspondent.
§ 9b.2 Press correspondents employed by United States media organizations.
In order to obtain a Department of State press building pass, press correspondents employed by United States media organizations must:
(a) Present to the Office of Press Relations, Department of State, a letter from his or her organization stating:
(1) That the applicant is a bona fide, full-time media correspondent based permanently and residing in the Washington, DC, metropolitan area;
(2) That the applicant is employed by the certifying organization;
(3) That the organization and the applicant have regular and substantial assignments in connection with the Department of State as evidence by regular attendance at the daily press briefings.
(b) Submit to the Office of Press Relations, Department of State, Washington, DC 20520, a signed application and FORM DSP-97 for a press building pass. Applicants must comply with instructions contained in paragraphs 1 and 6 of FORM DSP-97 regarding fingerprinting and prior arrests. FORM DSP-97 requires the following information:
(1) Name;
(2) Affiliation with news media organizations;
(3) Date of birth;
(4) Place of birth;
(5) Sex;
(6) Citizenship;
(7) Social Security or passport number;
(8) Marital status;
(9) Spouse name;
(10) Office address and telephone number;
(11) Length of employment;
(12) Home address and telephone number; and
(13) Length of residence.
§ 9b.3 Press correspondents employed by foreign media organizations.
In order to obtain a Department of State press building pass, correspondents employed by foreign media organizations must:
(a) Present to the Office of Press Relations, Department of State, Washington, DC 20520 a letter from his or her organization stating:
(1) That the applicant is a bona fide, full-time media correspondent based permanently and residing in the Washington, DC, metropolitan area:
(2) That the applicant is employed by the certifying organization;
(3) That the organization and the applicant have regular and substantial assignments in connection with the Department of State as evidence by regular attendance at the daily press briefings.
(b) A letter from the Washington, DC Embassy of the nation where the organization is headquartered or from the Embassy of the United States in the nation where the organization is headquartered attesting to the existence of the news organization and the applicant’s employment by that organization. The Director of the Office of Press Relations may accept a letter from another source attesting to the existence of such news organizations and the applicant’s employment if, in his or her judgment, a substitute letter is warranted.
(c) Submit to the Office of Press Relations, Department of State, Washington, DC 20520 a signed application and FORM DSP-97 for a press building pass. Applicants must comply with instructions contained in paragraphs 1 and 6 of FROM DSP-97 regarding fingerprinting and prior arrests. FORM DSP-97 requires the following information:
(1) Name;
(2) Affiliation with news media organizations;
(3) Date of birth;
(4) Place of birth;
(5) Sex;
(6) Citizenship;
(7) Social Security or passport number;
(8) Marital status;
(9) Spouse name;
(10) Office address and telephone number;
(11) Length of employment;
(12) Home address and telephone number; and
(13) Length of residence.
§ 9b.4 Department of State building press pass for technical crews.
Department of State press building passes are issued to members of television and radio technical crews who provide technical support on a daily basis for media correspondents assigned to the Department of State. Members of technical crews who do not possess press passes, but who provide technical support for media correspondents assigned to the Department of State, may apply to the Office of Press Relations for a visitor’s pass valid for one day.
§ 9b.5 Temporary Department of State press building passes.
A media correspondent or technician who meets all the qualifications stated in §§ 9b.2(a)(1) and 9b.2(a)(2) or §§ 9b.3(a) and 9b.3(b), but does not have regular and substantial assignments in connection with the Department of State may make arrangements with the Office of Press Relations for the issuance of a visitor’s pass valid for one day.
§ 9b.6 Grounds for denial, revocation, or non-renewal of Department of State press building passes.
In consultation with the Bureau of Diplomatic Security and the Office of the Legal Adviser, the Director of the Office of Press Relations of the Department of State, may deny, revoke, or not renew the Department of State press building pass of any media correspondent or technician who:
(a) Does not meet the qualifications stated in §§ 9b.2(a)(1), 9b.2(a)(2) and 9b.2(a)(3) or §§ 9b.3(a)(1), 9b.3(a)(2), 9b.3(a)(3) and 9b.3(b). (Upon denial, revocation, or non-renewal the correspondent or technician may not re-apply for a period of one year unless there are material changes in meeting the qualifications.) or,
(b) Poses a risk of harm to the personal safety of Department of State or other Governmental personnel or to Government property; or
(c) Engages or engaged in conduct which there are reasonable grounds to believe might violate federal or state law or Department of State regulations.
(d) Has been convicted of a felony (or a crime in a foreign country that would be considered a felony if it were committed in the United States).
(e) Fails to claim an approved authorization form for a State Department press building pass after notification by the Office of Press Relations following a period of three (3) months.
§ 9b.7 Procedures for denial, revocation, or non-renewal of Department of State press building passes.
(a) If the Director of the Office of Press Relations, Department of State, anticipates, after consultation with the Office of the Legal Adviser, that in applying the standard set forth in § 9b.6 a Department of State press building pass might be denied, revoked or not renewed, the media correspondent or technician will be notified in writing by the Director of the basis for the proposed denial in as much detail as the security of any confidential source of information will permit. This notification will be sent by registered mail.
(b) The notification of the proposed denial, revocation or non-renewal sent to the correspondent will also contain a statement advising the correspondent of his or her right to respond to the proposed denial and to rebut any factual basis supporting the proposed denial.
(c) The correspondent shall be allowed thirty (30) days from the date of the mailing of the proposed denial, revocation or non-renewal notification to respond in writing. The response shall consist of any explanation or rebuttal deemed appropriate by the correspondent and will be signed by the correspondent under oath or affirmation.
(d) If the correspondent is unable to prepare a response within 30 days, an extension for one additional 30-day period will be granted upon receipt of the correspondent’s written request for such an extension.
(e) At the time of the filing of the media correspondent’s or technician’s written response to the notification of the proposed denial, revocation or non-renewal, the correspondent or technician may request, and will be granted, the opportunity to make a personal appearance before the Director of the Office of Press Relations, Department of State, for the purpose of personally supporting his/her eligibility for a press pass and to rebut or explain the factual basis for the proposed denial. The Director shall exercise, in consultation with the Bureau of Diplomatic Security and the Office of the Legal Adviser, final review authority in the matter. The correspondent or technician may be represented by counsel during this appearance.
(f)(1) On the basis of the correspondent’s or technician’s written and personal response and the factual basis for the proposed denial, revocation or non-renewal, the Director of the Office of Press Relations, Department of State, will consult with the Bureau of Diplomatic Security and the Office of the Legal Adviser to determine whether or not further inquiry or investigation concerning the issues raised is necessary.
(2) If a decision is made that no such inquiry is necessary, a final decision will be issued in conformity with paragraph (g) of this section.
(3) If a decision is made that such further inquiry is necessary, the Director of the Office of Press Relations of the Department of State, the Bureau of Diplomatic Security and the Office of the Legal Adviser will conduct such further inquiry as is deemed appropriate. At the Director’s discretion the inquiry may consist of:
(i) The securing of documentary evidence:
(ii) Personal interviews:
(iii) An informal hearing:
(iv) Any combination of paragraphs (f)(3)(i) through (f)(3)(iii) of this section.
(g) On the basis of the correspondent’s or technician’s written and personal response, the factual basis for the proposed denial and the additional inquiry provided for if such inquiry is conducted, the Director of the Office of Press Relations of the Department of State will consult with the Bureau of Diplomatic Security and the Office of the Legal Adviser and expeditiously reach a final decision in accordance with the standard set forth in § 9b.6. If a final adverse decision is reached, the correspondent or technician will be notified of this final decision in writing. This notification will set forth as precisely as possible, and to the extent that security considerations permit, the factual basis for the denial in relation to the standard set forth in § 9b.6. This notification will be sent by registered mail and will be signed by the Director of the Office of Press Relations of the Department of State.
§ 9b.8 Term and renewal of Department of State press building passes.
(a) Department of State press building passes for U.S. citizens are issued with three years’ validity. Subject to positive completion of an international background check, passes for non-U.S. citizens are issued with one year’s validity and may be renewed for three years. Notwithstanding its initial validity, any press building pass that has not been used for a twelve-month period, as recorded by the Bureau of Diplomatic Security’s turnstyle entry devices, will become invalid at the end of that twelve-month period.
(b) For any valid passes issued before October 1, 1995, notification shall be sent by the Department of State to the holder of the pass that the pass has become invalid by reason of lack of use for 12-month period. However, failure of the holder for any reason to receive such a notification shall not affect the invalidity of the pass. Anyone whose pass has become invalid may apply for a new pass in accordance with §§ 9b.2 through 9b.5.
SUBCHAPTER B – PERSONNEL
PART 11 – APPOINTMENT OF FOREIGN SERVICE OFFICERS
§ 11.10 Links to relevant provisions of the Foreign Affairs Manual.
(a) The Foreign Affairs Manual (FAM) is the formal written document for recording, maintaining, and issuing Department of State (Department) directives that address personnel and other matters. It is the primary authority for appointment of current Department employees to the Foreign Service. This part is the primary authority for the appointment of non-employees to the Foreign Service. The FAM provides Department procedures and policies that are not repeated in this part. It is an important resource for understanding the provisions of this part.
(b) The two FAM volumes relevant to this part are Volume 3, Personnel, and Volume 16, Medical. FAM provisions are cited by volume followed by chapter or subchapter – for example, Chapter 210 of Volume 16 would be cited 16 FAM 210. All of the relevant FAM provisions are on the Department’s public Web site. The links for the relevant FAM provisions are as follows:
| 3 FAM 2215 | |
| 3 FAM 2216.2 | |
| 3 FAM 2216.3 | |
| 3 FAM 2217 | |
| 3 FAM 2218 | |
| 3 FAM 2245 | |
| 3 FAM 2250 | |
| 3 FAM 2251.3 | |
| 3 FAM 2290 | |
| 16 FAM 210 |
§ 11.20 Entry-level Foreign Service Officer career candidate appointments.
(a) General considerations – (1) Authority. Pursuant to section 302 of the Foreign Service Act of 1980 (hereinafter referred to as “the Act”), all Foreign Service Officers shall be appointed by the President, by and with the advice and consent of the Senate. All appointments shall be made to a class and not to a particular post. No person shall be eligible for appointment as a Foreign Service Officer unless that person is a citizen of the United States, is twenty-one, and is world-wide available. Pursuant to section 306 of the Act, such appointment is initially a career-candidate appointment. The tenuring of Foreign Service Officer career candidates is governed by the provisions of 3 FAM 2245.
(2) Veterans’ preference. Pursuant to section 301 of the Act, the fact that an applicant for appointment as a Foreign Service Officer candidate is a veteran or disabled veteran, as defined in 5 U.S.C. 2108, must be considered as an affirmative factor in making such appointments.
(3) Policy. Appointment as an Entry Level Foreign Service Officer career candidate of class 6, 5, or 4 is governed by these regulations. Successful applicants will be appointed as career candidates for a period not to exceed 5 years. Under precepts of the Commissioning and Tenure Board, career candidates may be granted tenure and recommended for appointment as career Foreign Service Officers. Those who are not granted tenure prior to the expiration of their career-candidate appointments will be separated from the Foreign Service. Separated candidates who originally were employees of an agency and who accepted a limited appointment to the Foreign Service with the consent of the head of the agency in which they were employed will be entitled to reemployment rights in their former agency in accordance with section 310 of the Act.
(b) The Foreign Service Officer Test (FSOT). The following regulations apply to the FSOT:
(1) Purpose. The FSOT is designed to enable the Board of Examiners for the Foreign Service to test the applicant’s knowledge, skills, and abilities, including writing skills that are necessary to the work of a Foreign Service Officer.
(2) Eligibility. Before each FSOT, the Board of Examiners will establish a closing date for the receipt of applications for designation to take the test. No person will be designated to take the test who has not, as of that closing date, filed a complete application with the Board. To be designated to take the FSOT, an applicant, as of the date of the test, must be a citizen of the United States and at least 20 years of age.
(3) When and where given. The FSOT will be given periodically, in designated cities in the United States and at selected locales abroad, on dates established by the Board of Examiners and publicly announced on careers.state.gov.
(4) Scoring. The several parts of the FSOT will be weighted and graded according to standards established by the Board of Examiners. The Board of Examiners may adjust the passing score of the FSOT to reflect the projected hiring needs of the Foreign Service.
(c) Qualifications Evaluation Panel (QEP). The following regulations apply to the QEP:
(1) Purpose. Each QEP is designed to enable the Board of Examiners for the Foreign Service to review each candidate’s file and evaluate it against established precepts of successful Foreign Service Officer performance. The QEPs rank order candidates within each career track.
(2) Panels. QEPs are career track specific and are staffed by panelists approved by the Board of Examiners from a roster of qualified active duty and retired Foreign Service Officers. At least one of the panelists will be from the same career track as those in the candidate pool.
(3) Eligibility. Candidates whose score on the FSOT is at or above the passing level set by the Board of Examiners will be invited to submit their responses to Personal Narrative Questions. The questions, linked to the Foreign Service performance precepts, are designed to elicit specific examples of past performance where the candidate demonstrated the requisite precept.
(4) When administered. The Board of Examiners holds one session of QEPs following each FSOT.
(5) Scoring. Panelists will score files according to standards established by the Board of Examiners. The candidacy of anyone whose score is at or above the passing level set by the Board of Examiners will continue. The candidacy of anyone whose score is below the passing level will be ended and may not be considered again until the candidate has passed a new FSOT, at minimum of a year later. The Board of Examiners sets the passing score for each QEP based on the projected hiring needs of the Foreign Service. All candidates exempt from the FSOT, except Mustang applicants, are also exempt from review by a QEP.
(i) The Board of Examiners may authorize QEPs to give special consideration in the selection of candidates to certain factors, e.g., demonstrating language ability, which the Board will publicly announce on careers.state.gov.
(ii) The Board of Examiners may choose to verify accounts given by candidates in their personal narratives.
(d) Foreign Service Oral Assessment (FSOA). The following regulations apply to the FSOA:
(1) Purpose. The FSOA is designed to enable the Board of Examiners for the Foreign Service to test the candidate’s ability to demonstrate the qualities or dimensions that are essential to the successful performance of Foreign Service work. The FSOA for the Entry Level Foreign Service Officer Career Candidate Program will consist of an assessment procedure publicly announced by the Board of Examiners on careers.state.gov. The process is generally referred to as the Foreign Service Oral Assessment or FSOA.
(2) Eligibility – (i) Through the FSOT and QEP review. (A) Candidates who pass the FSOT and whose score on the QEP review is at or above the passing level set by the Board of Examiners will be invited to take the FSOA.
(B) Candidates must schedule the FSOA within 12 months of receiving their invitation to take the FSOA unless they receive an extension of time. Candidates may request an extension of up to an additional 12 months. Active duty military have unrestricted time to take an FSOA if they notify the Board of Examiners of their active duty status. Failure to take the FSOA within 12 months of the invitation will result in the cancellation of the candidacy, unless the candidate has requested and obtained an extension of eligibility. The candidacy of anyone for whom the scheduling period is extended by the Board due to being outside of the United States will automatically be terminated if the candidate fails to notify his or her registrar of the change in status within three months of returning to the United States. The candidate must schedule an FSOA, but if a candidate fails to appear for a scheduled FSOA, the candidacy is automatically terminated. The Director of the Office of Recruitment, Examination, and Employment in the Bureau of Human Resources, or his/her designee, will consider requests to reschedule on a case-by-case basis if a candidate so requests prior to his/her scheduled FSOA.
(ii) Through the Mustang Program. Career employees of the Department of State in classes FS-6 and above or grades GS-5 and above who are at least 21 years of age and who have at least three years of service with the Department may be selected by the Board of Examiners for admission to the FSOA for Entry Level Career Candidates under the Department’s Mustang Program. Mustang candidates must meet all program requirements and submit all application material to be considered for the Mustang Program. See the procedures set forth in 3 FAM 2216.2-4 (Foreign Service Officer Oral Assessment (FSOA)).
(iii) Through a mid-level conversion program. Employees of the Department of State in grade GS-13 and above are eligible to apply to enter the Foreign Service through a mid-level conversion program (see 3 FAM 2216.3-2) whenever held.
(iv) Through other programs. (A) Under programs established pursuant to section 105(d)(1) of the Act, which addresses diversity within the Foreign Service.
(B) Under any other special entry programs created by the Department to meet specific needs of the Foreign Service.
(3) When and where given. The FSOA will be held intermittently in Washington, DC, and may be held in selected cities in the United States or abroad as necessary, as publicly announced.
(4) Assessment panel. (i) The FSOA will be given by a panel of assessors approved by the Board of Examiners from a roster of active duty and/or retired Foreign Service Officers.
(ii) Service as an assessor shall be limited to a maximum of 5 years, unless a further period is specifically authorized by the Board. Normally assessment panels shall be chaired by a career officer of the Foreign Service, trained in personnel testing and evaluation. Determinations of duly constituted panels of assessors are final unless modified by specific action of the Board of Examiners.
(5) Scoring. Candidates taking the FSOA will be scored numerically according to standards established and publicly announced by the Board of Examiners, in places such as careers.state.gov. The candidacy of anyone whose score is at or above the passing level set by the Board will be continued. The candidacy of anyone whose score is below the passing level will be terminated.
(e) Background investigation. Candidates who pass the FSOA and elect to continue the hiring process will be subject to a background investigation. The background investigation must be conducted to determine the candidate’s eligibility for a security clearance and serves as the basis for determining suitability for appointment to the Foreign Service (see 3 FAM 2212.1 (Security Investigation)).
(f) Medical examination – (1) Eligibility. Candidates who pass the oral assessment and elect to continue the hiring process must undergo a medical examination. See the procedures in of 16 FAM 210 (Medical Clearances).
(2) [Reserved]
(g) Suitability Review Panel. Generally after the medical clearance has been issued and the background investigation is received, the candidate’s entire file (excluding any medical records) is reviewed and evaluated by the Suitability Review Panel to determine the candidate’s suitability for the Foreign Service. See the procedures in 3 FAM 2215 (Suitability Review). The candidacy of any candidate who is determined by the Suitability Review Panel to be unsuitable for appointment shall be terminated and the candidate so informed. According to procedures established by the Board of Examiners, a candidate may appeal this decision to the Board of Examiners Staff Director or designee whose decision will be final. The Bureau of Diplomatic Security (DS) will re-submit applicants to the Suitability Review Panel if they are found to have falsified information in the application process or are found to have disqualifying factors.
(h) Certification for appointment – (1) Eligibility. (i) A candidate will not be certified as eligible for appointment as a Foreign Service Officer Career Candidate unless that candidate is at least 21 years of age and a citizen of the United States.
(ii) Except for preference eligible individuals, career candidate appointments must be made before the candidate’s 60th birthday. Preference eligible individuals must be appointed before their 65th birthday. The maximum age for appointment under this program is based on the requirement that all career candidates must be able to:
(A) Complete at least two full tours of duty, exclusive of orientation and training;
(B) Complete the requisite eligibility period for tenure consideration; and
(C) Complete the requisite eligibility period to receive retirement benefits, prior to reaching the mandatory retirement age of 65 prescribed by the Act.
(iii) A candidate may be certified as eligible for direct appointment to classes FS-6, FS-5 or FS-4 based on established, publicly available, criteria.
(iv) Employees who receive a career candidate appointment, i.e., who are untenured, have five years to obtain tenure. These career-candidate appointments, including the appointment of an individual who is the employee of any agency, may not exceed five years in duration, and may not be renewed or be extended beyond five years. A candidate denied tenure under 3 FAM 2250 may not be reappointed as a career candidate to become a generalist.
(2) Career-track rank-order registers. The Board of Examiners maintains separate rank-order registers for career candidates in administrative, consular, economic, public diplomacy and political career tracks within the Department of State. Appointments from each career-track register will be made in rank order according to hiring needs.
(3) Special programs. Mustang candidates who are career employees of the Department of State and who have satisfactorily completed all aspects of the assessment process will be certified by the Board of Examiners for placement on the Hiring Register to compete for a hiring opportunity as a Foreign Service Officer. Mustang candidates who have previously passed the FSOT/QEP will continue in the career track they selected when registering for the FSOT and be placed on the appropriate career track register.
(4) Foreign language requirement. A candidate may be certified for appointment to classes FS-6, FS-5, or FS-4 without first having passed an examination in a foreign language, but the appointment will be subject to the condition that the newly appointed career candidate may not be appointed as a career Foreign Service Officer unless, within a specified period of time, proficiency in a foreign language is achieved.
(i) Termination of eligibility – (1) Time limit. Candidates who have qualified but have not been appointed because of lack of openings will be removed from the rank-order register 18 months after the date of placement on the rank-order register. Time spent in civilian Federal Government service abroad (to a maximum of 2 years of such service), including Peace Corps volunteer service, spouses of Foreign Service officers, or in active regular or reserve military service (no maximum), will not be counted as part of the 18-month eligibility period.
(2) Extension. The Board of Examiners may extend the eligibility period when such extension is, in its discretion, justified by the needs of the Foreign Service.
(3) Postponement of entrance on duty. Postponement of entrance on duty because of civilian Federal Government service abroad (to a maximum of 2 years of such service), including Peace Corps volunteer service, or as spouse of a Foreign Service Officer, or active regular or reserve military service (to a maximum of the limit of such required service), may be authorized by the Board.
(j) Travel expenses. The travel and other personal expenses of candidates incurred in connection with the written and oral examination will not be borne by the Government. However, the participating foreign affairs departments may issue round-trip invitational travel orders to bring candidates to Washington, DC, at government expense, when it is determined by the agencies that this is necessary in the interest of the Foreign Service.
§ 11.30 Mid-level Foreign Service Officer career candidate appointments. [Reserved]
§ 11.40 Senior Foreign Service Officer career candidate appointments. [Reserved]
§ 11.50 Foreign Service specialist career candidate appointments.
(a) General considerations. (1) Pursuant to section 303 of the Act, the Secretary may appoint individuals to the Foreign Service (other than those who are in the personnel categories specified in section 302(a) of the Act). Pursuant to section 306 of the Act, such appointment is initially a career candidate appointment. Section 303 governs the appointment by the Department of State of Foreign Service specialist career candidates to classes FS-1 and all classes below. Specialist candidates comprise all candidates for career appointment in all career tracks other than generalist career tracks (i.e., management, consular, economic, political, and public diplomacy). The tenuring of specialist career candidates is governed by the procedures in 3 FAM 2250.
(2) Veterans’ preference shall apply to the selection and appointment of Foreign Service specialist career candidates. Veterans’ preference is an affirmative factor once the candidate has been qualified for the position. As soon as veterans go on the Hiring Register, they may apply for additional points to increase their rank order standing.
(b) Specialist career candidate appointments – (1) Certification of need. (i) Candidates for appointment as specialist career candidates must be world-wide available and must have a professional or a functional skill for which there is a continuing need in the Foreign Service. No applicant shall be appointed for which there is no certified need established at a specific class level. Either the Director General may determine in advance which specialties are routinely or frequently in shortage or need periodic recruitment through publicly posted vacancy announcements, or the Director General may certify that there is a need for an applicant in a specific specialist category and at a specific class.
(ii) Candidates who receive a career candidate appointment, i.e., who are untenured, have four years with the possibility of five years (see 3 FAM 2251.3) to obtain tenure. These appointments, including the appointment of an individual who is the employee of any agency, may not exceed five years in duration, and may not be renewed or be extended beyond five years. A specialist candidate denied tenure under 3 FAM 2250 generally may not be reappointed as a career candidate in the same career track.
(2) Eligibility. An applicant must be a citizen of the United States and at least 20 years of age. The minimum age for appointment as a career candidate is 21. Except for preference eligible candidates, all career candidate appointments shall be made before the candidate’s 60th birthday. Preference eligible candidates may be appointed up to their 65th birthday. The maximum age for appointment under the program is based on the requirement that all career candidates shall be able to:
(i) Complete at least two full tours of duty, exclusive of orientation and training,
(ii) Complete the requisite eligibility period for tenure consideration, and
(iii) Complete the requisite eligibility period to receive retirement benefits, prior to reaching the mandatory retirement age of 65 prescribed by the Act.
(3) Screening. (i) Specialist career candidates will be screened initially on the basis of education and experience.
(ii) Based on a job analysis, the Board of Examiners, in coordination with any bureau responsible for the specialty, will establish the knowledge, skills, and abilities required to perform successfully the tasks and duties of Foreign Service specialists in that functional field. Assessors working for the Board of Examiners will screen applications under those approved criteria and select those who meet the requirements to invite to an oral assessment.
(4) Oral assessment. Candidates are selected through the initial screening process. The oral assessment will be given by a panel of assessors, at least one of whom will be a career Foreign Service employee proficient in the functional field for which the candidate is being tested. The assessment may include a writing sample. Candidates taking the oral assessment will be scored numerically according to standards set by the Board of Examiners. The candidacy of anyone whose score is at or above the passing level set by the Board will be continued. The candidacy of anyone whose score is below the passing level will be terminated. The candidate may only reapply after the first anniversary date of the original application.
(5) Background investigation. Specialist candidates who pass the oral assessment and elect to continue the hiring process will be subject to a background investigation. The background investigation must be conducted to determine the candidate’s eligibility for a security clearance and serves as the basis for determining suitability for appointment to the Foreign Service (see 3 FAM 2212.1-1 (Security Investigation)).
(6) Medical examination. Candidates who pass the oral assessment and elect to continue the hiring process must undergo a medical examination. See the procedures in 16 FAM 210 (Medical Clearances).
(7) Suitability Review Panel. After the medical examination clearance has been issued and the background investigation is received, the candidate’s entire file (excluding any medical records) is reviewed and evaluated by a Suitability Review Panel to determine the candidate’s suitability for the Foreign Service. See the procedures in 3 FAM 2215 (Suitability Review). According to procedures established by the Board of Examiners, a candidate may appeal this decision to the Board of Examiners Staff Director or designee, whose decision will be final. DS will re-submit applicants to the Suitability Review Panel if they are found to have falsified information on their application or are found to have disqualifying factors.
§ 11.60 Limited non-career appointments.
Consistent with section 303 of the Act (22 U.S.C. 3943), the Secretary of State may also appoint Civil Service employees and other individuals to the Foreign Service, and, consistent with section 309 of the Act (22 U.S.C. 3949), such appointments may include limited non-career appointments (LNAs). After meeting the job specific requirements, candidates must meet applicable medical, security, and suitability requirements. Limited non-career appointments are covered under 3 FAM 2290.
PART 12 – COMPLAINTS AGAINST EMPLOYEES BY ALLEGED CREDITORS
§ 12.1 No cognizance taken of complaint.
The Department of State will take no cognizance of a complaint against an employee by an alleged creditor, so far as the complainant is concerned, beyond acknowledging receipt of his communication.
§ 12.2 Claimants denied access to employees.
Persons claiming to be creditors or collectors of debts or claims will be denied access to employees for the purpose of presenting or collecting claims during the hours set apart for the transaction of public business or while the employees concerned are on duty.
PART 13 – PERSONNEL
§ 13.1 Improper exaction of fees.
Any consular officer who collects, or knowingly allows to be collected, for any services any other or greater fees than are allowed by law for such services, shall, besides his or her liability to refund the same, be liable to pay to the person by whom or in whose behalf the same are paid, treble the amount of the unlawful charge so collected, as a penalty. The refund and penalty may be recovered with costs, in any proper form of action, by such person for his or her own use. The amount of such overcharge and penalty may at the discretion of the Secretary of the Treasury be ordered withheld from the compensation of such officer for payment to the person entitled to the same (22 U.S.C. 4209).
The foregoing relates to improper collection and personal withholding of funds by consular officers. For procedure where a collection, having been erroneously made, has been returned by the officer to the Treasury in good faith, making a subsequent accounting adjustment necessary, see § 22.6, Refund of fees of this chapter.
§ 13.2 Embezzlement.
Every consular officer who shall receive money, property, or effects belonging to a citizen of the United States and shall not within a reasonable time after demand made upon him or her by the Secretary of State or by such citizen, his or her executor, administrator, or legal representative, account for and pay over all moneys, property, and effects, less his or her lawful fees, due to such citizen, shall be deemed guilty of embezzlement, and shall be punishable by imprisonment for not more than five years, and by a fine of not more than $2,000 (22 U.S.C. 4217). Penalties of imprisonment and fine are also prescribed for embezzlement in connection with the acceptance, without execution of a prescribed form of bond, of appointment from any foreign state as administrator, guardian, or to any other office of trust for the settlement or conservation of estates of deceased persons or of their heirs or of persons under legal disabilities (22 U.S.C. 4198 and 4199). Acceptance of such appointments is not ordinarily permitted under existing regulations. See § 92.81 of this chapter.
§ 13.3 [Reserved]
§ 13.4 False certificate as to ownership of property.
If any consul of vice consul falsely and knowingly certifies that property belonging to foreigners is property belonging to citizens of the United States, he or she shall be punishable by imprisonment for not more than three years, and by a fine of not more than $10,000 (22 U.S.C. 4218).
PART 16 – FOREIGN SERVICE GRIEVANCE SYSTEM
§ 16.1 Definitions.
(a) Act means the Foreign Service Act of 1946, as amended.
(b) Grievant means any officer or employee of the Service who is a citizen of the United States; or for purposes of paragraphs (c) (7) and (8) of this section, a former officer or employee of the Service; or in the case of death of the officer or employee, a surviving spouse or dependent family member of the officer or employee.
(c) Grievance means any act or condition subject to the control of the Foreign Affairs agencies (the Department of State, the Agency for International Development, or the U.S. Information Agency) which is alleged to deprive the grievant of a right or benefit authorized by law or regulation or is otherwise a source of concern or dissatisfaction to the grievant, including, but not limited to the following:
(1) Complaints against separation of an officer or employee allegedly contrary to law or regulation or predicated upon alleged inaccuracy (including inaccuracy resulting from omission or any relevant and material document), error, or falsely prejudicial character of any part of the grievant’s official personnel record;
(2) Other alleged violation, misinterpretation, or misapplication of applicable law, regulation, or published policy affecting the terms and conditions of the grievant’s employment or career status;
(3) Allegedly wrongful disciplinary action against an employee constituting a reprimand or suspension from official duties;
(4) Dissatisfaction with any matter subject to the control of the agency with respect to the grievant’s physical working environment;
(5) Alleged inaccuracy, error, or falsely prejudicial material in the grievant’s official personnel file;
(6) Action alleged to be in the nature of reprisal or other interference with freedom of action in connection with an employee’s participation under these grievance procedures;
(7) When the grievant is a former officer who was involuntarily retired pursuant to sections 633 and 634 of the Act within 6 years prior to December 1, 1975, “grievance” shall mean a complaint that such involuntary retirement violated applicable law or regulation effective at the time of the retirement or that the involuntary retirement was predicated directly upon material contained in the grievant’s official personnel file alleged to be erroneous or falsely prejudicial in character; and
(8) When the grievant is a former officer or employee or a surviving spouse or dependent family member of a former officer or employee, “grievance” shall mean a complaint that an allowance or other financial benefit has been denied arbitrarily, capriciously or contrary to applicable law or regulation.
(d) Grievance does not include the following:
(1) Complaints against individual assignment or transfers of Foreign Service officers or employees, which are ordered in accordance with law and regulation (see also paragraph (c)(2) of this section);
(2) Judgments of Selection Boards rendered pursuant to section 623 of the Act, or of equivalent bodies, in ranking Foreign Service officers and employees for promotion on the basis of merit, or judgments in examinations prescribed by the Board of Examiners pursuant to section 516 or 517 of the Act (see also paragraph (c)(2) of this section);
(3) Termination of time-limited appointments pursuant to 22 U.S.C. 929 and 1008, and the pertinent regulations prescribed by the employing agency (see also paragraph (c)(2) of this section);
(4) Any complaints or appeals for which a specific statutory appeals procedure exists (see appendix A for examples).
(e) Employee organization means any employee organization accorded recognition as the excusive employee representative pursuant to Executive Order 11636 dated December 17, 1971.
(f) Grievance Board or Board means the full Foreign Service Grievance Board, or a Panel or member thereof, as appropriate.
(g) Party means the grievant or the Foreign Affairs agency having control over the act or condition forming the subject matter of the grievance.
(h) Bureau means equivalent organizational elements in State and USIA, and includes offices in AID.
(i) Days means calendar days.
§ 16.2 General provisions.
(a) Statement of purpose. These regulations establish procedures as required by law to provide Foreign Service officers and employees (and their survivors) of the Foreign Affairs agencies, a grievance procedure to insure a full measure of due process, and to provide for the just consideration and resolution of grievances of such officers, employees, and survivors. No regulation promulgated in this part shall be interpreted or applied in any manner which would alter or abridge the provisions of the due process established by the Congress in Pub. L. 94-141, 22 U.S.C. 1037, section 691.
(b) Discussion of complaints. (1) Every effort should be made to settle any employee complaint informally, promptly, and satisfactorily.
(2) Supervisors and other responsible officers should encourage employees to discuss complaints with them and should respond in a timely manner to resolve the complaints.
(3) An employee initially should discuss a complaint with the employee’s current supervisor or with the responsible officer who has immediate jurisdiction over the complaint to give that person an opportunity to resolve the matter, before further steps are taken under these procedures.
(c) Guidance. Nothing in these procedures prevents a grievant from seeking guidance from any official who might be helpful respecting the submission of a grievance or its resolution.
(d) Freedom of action. (1) Any grievant, witness, representative or other person involved in a proceeding hereunder shall be free from any restraint, interference, coercion, harassment, discrimination, or reprisal in those proceedings or by virtue of them. The Foreign Affairs agencies recognize their obligation to insure compliance with this section. Any person involved or having immediate knowledge of any alleged breach of this section should call it to the attention of the pertinent foreign affairs agency through appropriate channels for corrective action as necessary. Normally such allegations should be brought to the attention of the senior agency official at the post; and at Washington, DC, to the Director, Grievance Staff for State; Chief, Employee Relations Branch for AID and Chief, Employee-Management Relations Division for USIA.
(2) The grievant has the right to a representative of the grievant’s own choosing at every stage of the proceedings. The grievant and repre- sentative(s) who are under the control, supervision, or responsibility of the Foreign Affairs agencies shall be granted reasonable periods of administrative leave to prepare, to be present, and to present the grievance.
(3) Any witness under the control, supervision, or responsibility of a Foreign Affairs agency shall be granted reasonable periods of administrative leave to appear and testify at any such proceeding.
(4) The Foreign Service Grievance Board established hereunder shall have authority to ensure that no copy of the determination of the agency head or designee to reject a Grievance Board recommendation, no notation of the failure of the Grievance Board to find for the grievant, and no notation that a proceeding is pending or has been held, shall be entered in the personnel records of the grievant (unless by order of the Grievance Board as a remedy for the grievance) or those of any other officer or employee connected the grievance. The Foreign Affairs agencies shall maintain grievance records under appropriate safeguards to preserve confidentiality (§ 16.9).
§ 16.3 Access to records.
(a) Grievance Board records. The grievant and the grievant’s representative shall have access to the record of proceedings, including the decision of the Board.
(b) Agency records. (1) In considering the validity of a grievance, the Grievance Board shall have access, to the extent permitted by law, to any agency record considered by the Board to be relevant to the grievant and the subject matter of the grievance.
(2) The agency shall, subject to applicable law, promptly furnish the grievant any agency record which the grievant requests to substantiate the grievance and which the agency or the Grievance Board determines is relevant and material to the proceeding. When deemed appropriate by the agency or the Board, a grievant may be supplied with only a summary of extract of classified material. If a request by a grievant for a document is denied prior to or during the agency’s consideration of a grievance, such denial may be raised by the grievant as an integral part of the grievance before the Board.
(3) These regulations do not require disclosure of any official agency record to the Grievance Board or a grievant where the head of agency or deputy determines in writing that such disclosure whould adversely affect the foreign policy or national security of the United States.
§ 16.4 Time limits for grievance filing.
(a) A grievance concerning a continuing practice or condition may be presented at any time if its adverse effect is presently continuing. Documents contained in official employee personnel files, for example, shall be deemed to constitute a continuing condition.
(b) Subject to paragraph (a) of this section, a grievance under these regulations is forever barred, and the Grievance Board shall not consider or resolve the grievance, unless the grievance is presented within a period of 3 years after the occurrence or occurrences giving rise to the grievance, except that if the grievance arose earlier than 2 years prior to the effective date of these regulations, the grievance shall be so barred, and no considered and resolved, unless it is presented within a period of 2 years after the effective date of these regulations, There shall be excluded from the computation of any such period any time during which the grievant was unaware of the grounds which are the basis of the grievance and could not have discovered such grounds if the grievant had exercised, as determined by the Grievance Board, reasonable diligence.
(c) A grievance shall be deemed presented to the responsible official (§ 16.7(b)), transmitted to post or bureau (§ 16.7(c)) submitted for agency review (§ 16.8) or filed with the Grievance Board § 16.11(a):
(1) On the date of its dispatch by telegram, registered or certified mail, or receipted mail, in a diplomatic pouch;
(2) On the date of its arrival at the appropriate office, if delivered by any other means.
§ 16.5 Relationship to other remedies.
(a) A grievant may not file a grievance under these procedures if the grievant has formally requested, prior to filing a grievance, that the matter or matters which are the basis of the grievance be considered or resolved and relief be provided, under another provision of law, regulation, or executive order, and the matter has been carried to final decision thereunder on its merits or is still under consideration.
(b) If a grievant is not prohibited from filing a grievance under these regulations by paragraph (a) of this section, the grievant may file under these regulations notwithstanding the fact that such grievance may be eligible for consideration, resolution, and relief under a regulation or executive order other than under these regulations, but such election of remedies shall be final upon the acceptance of jurisdiction by the Board.
§ 16.6 Security clearances.
The agencies shall use their best endeavors to expedite security clearances whenever necessary to ensure a fair and prompt investigation and hearing.
§ 16.7 Agency procedures.
(a) Initial consideration. (1) Grievances shall be considered through the steps provided in this section before they are filed with the Grievance Board.
(2) During the pendency of agency procedures under this section, the grievant may request a suspension of the proposed action of the character of separation or termination of the grievant, disciplinary action against the grievant, or recovery from the grievant of alleged overpayment of salary, expenses or allowances, which is related to the grievance. The request must be in writing and addressed to the responsible official of the agencies, as designated in § 16.8(a)(2) stating the reasons for such suspension. If the request is related to separation or termination of the grievant, and the agency considers that the grievance is not frivolous and is integral to the proposed action, the agency shall suspend its proposed action until completion of agency procedures, and for a period thereafter if necessary, consistent with paragraph (a) of § 16.11, to permit the grievant to file a grievance with the Board, and to request interim relief under paragraph (c) of § 16.11. If a request is denied, the agency shall provide the grievant in writing the reason for denial. Nothing in these regulations shall be deemed to preclude an employee from requesting the suspension of any proposed action.
(b) Consideration by responsible officer. (1) While every effort should be made to resolve a complaint by an initial discussion between an employee and the supervisor or responsible officer, an employee may present the complaint as a grievance by submitting it in writing, to that person. (The term “responsible officer” as used herein includes any appropriate officer who has immediate jurisdiction over the complaint.) The presentation shall include a description of the act or condition which is the subject of the grievance; its effect on the grievant; any provision of law, regulation, or agency policy which the grievant may believe was violated or misapplied; any documentary evidence readily available to the grievant on which the grievance rests; the identity of individuals having knowledge of relevant facts; and a statement of the remedial action requested.
(2) The responsible officer, whenever possible, shall use independent judgment in deciding whether the grievance is meritorious and what the resolution of it should be. Within 15 days from receipt of the written grievance, the responsible officer shall provide the grievant with a written response, which shall include a statement of any proposed resolution of the grievance.
(3) If the response denies in whole or in part the remedial action requested, such response shall notify the grievant of the time within which to appeal the decision, and identity of the senior official, or designee, to whom the appeal should be addressed. In those cases in which the senior official, or designee, is the responsible officer to whom the grievance was initially presented or has participated in the decision process and has formally approved the written response of the responsible officer, the grievant shall be so notified and advised that the grievance may be submitted directly to the agency for review under § 16.8.
(c) Bureau or post review. (1) If the responsible officer’s written response does not resolve the grievance to the grievant’s satisfaction, within 10 days of receiving it (or, if no response is received, within 25 days after first presenting the grievance), the grievant may pursue the grievance by transmitting it in writing to the senior official, or the designee in the bureau or post which has authority to resolve the grievance. The written transmission shall include all the information required by paragraph (b)(1) of this section and copies of any correspondence under paragraphs (b) (2) and (3) of this section.
(2) Within 15 days from receipt of the grievance that official shall provide the grievant with a written decision, including any proposed resolution of the grievance. If the decision denies in whole or in part the remedial action requested, the communication shall notify the grievant of the time within which to submit the grievance for agency review and the identity of the appropriate agency official to whom the grievance should be addressed.
§ 16.8 Agency review.
(a) Submission. (1) An employee may submit the grievance for agency review if the grievance (i) is not within the jurisdiction of a post or bureau, or (ii) the grievance has been considered but not resolved to the grievant’s satisfaction within the post or bureau as provided in § 16.7(c) within 10 days after receipt of the post’s or bureau’s decision (or, if no response is received, within 25 days after presenting it to the senior official or the designee). The grievant shall submit it in writing to the responsible official of the agency which has control of the act or condition which is the subject of the grievance.
(2) Responsible officials. The responsible officials of the agencies are the Deputy Assistant Secretary for Personnel (State), the Director of Personnel and Manpower (AID), and the Chief, Employee-Management Relations Division (USIA).
(3) Contents. (i) A request for agency review shall include a description of the act or condition which is the subject of the grievance; its effect on the grievant; any provision of law, regulation or agency policy which the grievant may believe was violated or misapplied; copies of any correspondence under § 16.7(a), any documentary evidence readily available to the grievant on which the grievance rests; the identity of individuals having knowledge of relevant facts; and a statement of the remedial action requested.
(ii) The responsible official shall review the grievance on the basis of available documentary evidence, and, in that official’s discretion, interview persons having knowledge of the facts. The agency review shall be completed and its decision dispatched within 90 days from the date of the initial written presentation of the grievance. The grievant shall be informed in writing of the findings of the responsible official and any proposed resolution of the grievance. The communication shall also include the time within which the grievant may file a grievance with the Grievance Board and the appropriate procedure to be followed in this respect.
§ 16.9 Records.
All official records concerning agency consideration of grievances, except those appropriate to implementation of decisions favorable to grievants, shall be kept separate from the official personnel record of the grievant and any other individuals connected with the grievance, and shall not be accessible to agency personnel other than the grievant, the grievant’s representative, and those responsible for consideration of grievances.
§ 16.10 Foreign Service Grievance Board.
(a) Establishment and composition. There is hereby established a Foreign Service Grievance Board for the Department of State, the Agency for International Development and the U.S. Information Agency to consider and resolve grievances under these procedures.
(b) The Grievance Board shall consist of not less than 5 members nor more than 15 members (including a chairperson) who shall be independent, distinguished citizens of the United States, well known for their integrity, who are not active officers, employees, or consultants of the Foreign Affairs agencies (except consultants who served as public members of the Interim Grievance Board previously established under section 660, Volume 3, Foreign Affairs Manual) but may be retired officers or employees. On its initial establishment, the Board shall consist of 15 members including chairperson.
(c) The Board may act by or through panels or individual members designated by the chairperson, except that hearings within the continental United States shall be held by panels of at least three members unless the parties agree otherwise. Reference in these regulations to the Grievance Board shall be considered to be reference to a panel or member of the Grievance Board where appropriate. All members of the Grievance Board shall act as impartial individuals in considering grievances.
(d) The members of the Grievance Board, including the chairperson, shall be appointed by the Secretary of State after being designated by the written agreement of the Foreign Affairs agencies and the employee organization.
(e) The Board chairperson and other members shall be appointed for terms of 2 years, subject to renewal upon the agreement of the Foreign Affairs agencies and the employee organization; except that the terms of 7 of the initially appointed members shall expire at the end of one year.
(f) Any vacancies shall be filled by the Secretary of State upon the nomination by the Board following the agreement of the agencies and the employee organization.
(g) Compensation. Members, including the chairperson, who are not employees of the Federal Government shall receive compensation for each day they are performing their duties as members of the Grievance Board (including travel time) at the daily rate paid an individual at GS-18 level of the General Schedule under section 5332 of title 5 of the United States Code.
(h) Removal. Grievance Board members shall be subject to removal by the Secretary of State for corruption, other malfeasance, or the demonstrated incapacity to perform their functions. No member shall be removed from office until after the Board of the Foreign Service has conducted a hearing and made its recommendations in writing to the Secretary of State, except where the right to a hearing is waived in writing. The Board of the Foreign Service shall provide a member with full notice of the charges against that member, and afford a member the right to counsel, to examine and cross-examine witnesses, and to present documentary evidence.
(i) Grievance Board procedures. In accordance with part J, title VI of the Act, the Board may adopt regulations concerning the organization of the Board and such other regulations as mey be necessary to govern its proceedings.
(j) Board facilities and staff support. The Grievance Board may obtain facilities, services, and supplies through the general administrative services of the Department of State. All expenses of the Board, including necessary costs of the grievant’s travel and travel-related expenses, shall be paid out of funds appropriated to the Department for obligation and expenditure by the Board. At the request of the Board, officers and employees on the rolls of the Foreign Affairs agencies may be assigned as staff employees to the Grievance Board. Within the limit of appropriated funds, the Board may appoint and fix the compensation of such other employees as the Board considers necessary to carry out its functions. The officers and employees so appointed or assigned shall be responsible solely to the Grievance Board and the Board shall prepare the performance evaluation reports for such officers and employees. The records of the Grievance Board shall be maintained by the Board and shall be separate from all other records of the Foreign Affairs agencies.
§ 16.11 Grievance Board consideration of grievances.
(a) Filing of grievance. A grievant whose grievance is not resolved satisfactorily under agency procedures (§ 16.7) shall be entitled to file a grievance with the Grievance Board no later than 60 days after receiving the agency decision. In the event that an agency has not provided its decision within 90 days of presentation, the grievant shall be entitled to file a grievance with the Grievance Board no later than 150 days after the date of presentation to the agency. The Board may extend or waive, for good cause, the time limits stated in this section.
(b) Exhaustion of agency procedures. In the event that the Grievance Board finds that a grievance has not been presented for agency consideration or that a grievance has been expanded or modified to include materially different elements, the Board shall return the grievance to the official responsible for final agency review unless the agency waives any objection to Board consideration of the grievance without such review.
(c) Prescription of interim relief. If the Grievance Board determines that the agency is considering any action of the character of separation or termination of the grievant, disciplinary action against the grievant, or recovery from the grievant of alleged overpayment of salary, expenses, or allowances, which is related to a grievance pending before the Board, and that such action should be suspended, the agency shall suspend such action until the Board has ruled upon the grievance. Notwithstanding such suspension of action, the head of the agency concerned or a chief of mission or principal officer may exclude an officer or employee from official premises or from the performance of specified duties when such exclusion is determined in writing to be essential to the functioning of the post or office to which the officer or employee is assigned.
(d) Inquiry into grievances. The Board shall conduct a hearing at the request of a grievant in any case which involves disciplinary action, or a grievant’s retirement from the Service under sections 633 and 634 of the Act, or which in the judgment of the Board can best be resolved by a hearing or by presentation of oral argument. In those grievances in which the Board holds no hearing, the Board shall offer to each party the opportunity to review and to supplement, by written submission, the record of proceedings prior to its decision.
§ 16.12 Hearing.
(a) Appearances and representation. The grievant, a reasonable number of representatives of the grievant’s own choosing, and a reasonable number of agency representatives, are entitled to be present at the hearing. The Grievance Board may, after considering the views of the parties and any other individuals connected with the grievance, decide that a hearing should be open to others.
(b) Conduct of hearing. (1) Testimony at a hearing shall be given by oath or affirmation which any Board member or person designated by the Board shall have authority to administer.
(2) Each party shall be entitled to examine and cross-examine witnesses at the hearing or by deposition, and to serve interrogatories answered by the other party unless the Board finds such interrogatory irrelevant or immaterial. Upon request of the Board, or upon a request of the grievant deemed relevant and material by the Board, and agency shall promptly make available at the hearing or by deposition any witness under its control, supervision or responsibility, except that if the Board determines that the presence of such witness at the hearing is required for just resolution of the grievance, then the witness shall be made available at the hearing, with necessary costs and travel expenses provided by the agency.
(3) During any hearings held by the Board, any oral or documentary evidence may be received but the Board shall exclude any irrelevant, immaterial, or unduly repetitious evidence normally excluded in hearings conducted under the Administrative Procedures Act (5 U.S.C. 556).
(4) A verbatim transcript shall be made of any hearing and shall be part of the record of proceedings.
§ 16.13 Decisions.
(a) Upon completion of the hearing or the compilation of such record as the Board may find appropriate in the absence of a hearing, the board shall expeditiously decide the grievance on the basis of the record of proceedings. In each case the decision of the Board shall be in writing, shall include findings of fact, and shall include the reasons for the Board’s decision.
(b) If the Grievance Board finds that the grievance is meritorious, the Board shall have the authority within the limitations of the authority of the head of the agency, to direct the agency:
(1) To correct any official personnel record relating to the grievant which the Board finds to be inaccurate, erroneous, or falsely prejudicial;
(2) To reverse and administrative decision denying the grievant compensation including related within-class salary increases pursuant to section 625 of the Act or any other perquisite of employment authorized by law or regulation when the Board finds that such denial was arbitrary, capricious, or contrary to law or regulation;
(3) To retain in service and employee whose termination would be in consequence of the matter by which the employee is aggrieved;
(4) To reinstate with back pay, under applicable law and regulations, an employee where it is clearly established that the separation or suspension without pay of the employee was unjustified or unwarranted;
(5) To order an extension of the time of an employee’s eligibility for promotion to a higher class where the employee suffered career impairment in consequence of the matter by which the employee is aggrieved;
(6) To order that an employee be provided with facilities relating to the physical working environment which the employee has been denied arbitrarily, capriciously or in violation of applicable regulation.
(c) Such orders of the Board shall be final, subject to judicial review as provided for in section 694 of the Act, except that reinstatement of former officers who have filed grievances under § 16.1(c)(7) shall be presented as Board recommendations, the decision on which shall be subject to the sole discretion of the agency head or designee, who shall take into account the needs of the Service in deciding on such recommendations, and shall not be subjected to judicial review under section 694 of the Act. The reason(s) for the agency head’s (or designee’s) decision will be conveyed in writing to the Board and the grievant.
(d) If the Board finds that the grievance is meritorious and that remedial action should be taken that directly relates to promotion or assignment of the grievant, or to other remedial action, including additional step increases, not provided for in paragraph (b) of this section, or if the Board finds that the evidence before it warrants disciplinary action against any officer or employee, it shall make an appropriate recommendation to the head of the agency, and forward to the head of the agency the record of the Board’s proceedings, including the transcript of the hearing, if any. The head of the agency (or designee, who shall not have direct responsibility for administrative management) shall make a written decision to the parties and to the Board on the Board’s recommendation within 30 days from receipt of the recommendation. A recommendation of the Board may be rejected in part or in whole if the action recommended would be contrary to law, would adversely affect the foreign policy or security of the United States, or would substantially impair the efficiency of the Service. If the decision rejects the Board’s recommendation in part or in whole, the decision shall state specifically any and all reasons for such action. Pending the decision, there shall be no ex parte communications concerning the grievance between the agency head, or designee, and any person involved in the grievance proceeding.
§ 16.14 Reconsideration of a grievance.
A grievant whose grievance is found not to be meritorious by the Board may obtain reconsideration by the Board only upon presenting newly discovered or previously unavailable material evidence not previously considered by the Board and then only upon approval of the Board.
§ 16.15 Judicial review.
Any aggrieved party may obtain judicial review of these regulations, and revisions thereto, and final actions of the agency head (or designee) or the Grievance Board hereunder, in the District Courts of the United States, in accordance with the standards set forth in chapter 7 of title 5 of the United States Code. Section 706 of title 5 shall apply without limitation or exception.
PART 17 – OVERPAYMENTS FROM THE FOREIGN SERVICE RETIREMENT AND DISABILITY FUND UNDER THE FOREIGN SERVICE RETIREMENT AND DISABILITY SYSTEM (FSRDS) AND THE FOREIGN SERVICE PENSION SYSTEM (FSPS)
§ 17.1 General.
This part establishes procedures for notifying individuals of their rights if they have received an overpayment from the Foreign Service Retirement and Disability Fund under Chapter 8 of the Foreign Service Act of 1980, as amended, including their right to contest the determination that there has been an overpayment and the right to request a waiver of recovery of the overpayment. This part also provides the procedures for administrative determination of these rights and for appeals of negative determinations.
§ 17.2 Conditions for waiver of recovery of an overpayment.
(a) Foreign Service Retirement and Disability System. Recovery of an overpayment from the Foreign Service Retirement and Disability Fund under the Foreign Service Retirement and Disability System may be waived pursuant to section 4047(d), of title 22, United States Code when the individual is without fault and recovery would be against equity and good conscience or administratively infeasible.
(b) Foreign Service Pension System. Recovery of an overpayment from the Foreign Service Retirement and Disability Fund under the Foreign Service Pension System may be waived pursuant to section 4071(b) of title 22, United States Code and section 8470(b) of title 5, United States Code when the individual is without fault and recovery would be against equity and good conscience.
(c) When it has been determined that the recipient of an overpayment is ineligible for waiver, the individual is nevertheless entitled to an adjustment in the recovery schedule if he or she shows that it would cause him or her financial hardship to make payment at the rate scheduled.
§ 17.3 Fault.
A recipient of an overpayment is without fault if he or she performed no act of commission or omission that resulted in the overpayment. The fact that the Department of State or other agency may have been at fault in initiating an overpayment will not necessarily relieve the individual from liability.
(a) Considerations. Pertinent considerations in finding fault are –
(1) Whether payment resulted from the individual’s incorrect but not necessarily fraudulent statement, which he/she should have known to be incorrect;
(2) Whether payment resulted from the individual’s failure to disclose material facts in his/her possession which he/she should have known to be material; or
(3) Whether he/she accepted a payment which he/she knew or should have known to be erroneous.
(b) Mitigation factors. The individual’s age, physical and mental condition or the nature of the information supplied to him or her by the Department of State or a Federal agency may mitigate against finding fault if one or more contributed to his or her submission of an incorrect statement, a statement which did not disclose material facts in his or her possession, or his or her acceptance of an erroneous overpayment.
§ 17.4 Equity and good conscience.
(a) Defined. Recovery is against equity and good conscience when –
(1) It would cause financial hardship to the person from whom it is sought;
(2) The recipient of the overpayment can show (regardless of his or her financial circumstances) that due to the notice that such payment would be made or because of the incorrect payment either he/she has relinquished a valuable right or changed positions for the worse; or
(3) Recovery could be unconscionable under the circumstances.
(b) [Reserved]
§ 17.5 Financial hardship.
(a) Waiver of overpayment will not be allowed in any case prior to receipt and evaluation of a completed Statement of Financial Status, duly sworn by the recipient of the overpayment.
(b) Financial hardship may be deemed to exist in, but not limited to, those situations where the recipient from whom collection is sought needs substantially all of his or her current income and liquid assets to meet current ordinary and necessary living expenses and liabilities.
(1) Considerations. Some pertinent considerations in determining whether recovery would cause financial hardship are as follows:
(i) The individual’s financial ability to pay at the time collection is scheduled to be made.
(ii) Income to other family member(s), if such member’s ordinary and necessary living expenses are included in expenses reported by the individual.
(c) Exemptions. Assets exempt from execution under State law should not be considered in determining an individual’s ability to repay the indebtedness, rather primary emphasis shall be placed upon the individual’s liquid assets and current income in making such determinations.
§ 17.6 Ordinary and necessary living expenses.
An individual’s ordinary and necessary living expenses include rent, mortgage payments, utilities, maintenance, food, clothing, insurance (life, health and accident), taxes, installment payments, medical expenses, support expenses when the individual is legally responsible, and other miscellaneous expenses which the individual can establish as being ordinary and necessary.
§ 17.7 Waiver precluded.
(a) Waiver of an overpayment cannot be granted when:
(1) The overpayment was obtained by fraud; or
(2) The overpayment was made to an estate.
(b) [Reserved]
§ 17.8 Burdens of proof.
(a) Burden of the Department of State. The Bureau of Resource Management, Department of State, must establish by the preponderance of the evidence that an overpayment occurred.
(b) Burden of individual. The recipient of an overpayment must establish by substantial evidence that he or she is eligible for waiver or an adjustment in the recovery schedule.
§ 17.9 Procedures.
(a) Notice. The Bureau of Resource Management, Department of State, shall give written notification to any individual who has received an overpayment promptly by first-class mail to the individual at the individual’s most current address in the records of the Bureau of Resource Management. The written notice shall inform the individual of:
(1) The amount of the overpayment;
(2) The cause of the overpayment;
(3) The intention of the Department to seek repayment of the overpayment,
(4) The date by which payment should be made to avoid the imposition of interest, penalties, and administrative costs;
(5) The applicable standards for the imposing of interest, penalties, and administrative costs;
(6) The department’s willingness to discuss alternative payment arrangements and how the individual may offer to enter into a written agreement to repay the amount of the overpayment under terms acceptable to the Department; and
(7) The name, address and telephone number of a contact person within the Bureau of Resource Management. The written notice also shall inform the individual of their right to contest the overpayment, their right to request a waiver of recovery of the overpayment, and the procedures to follow in case of such contest or request for waiver of recovery. The notification shall allow at least 30 days from its date within which the individual may contest in writing the overpayment or request a waiver of recovery, including with their submission all evidence and arguments in support of their position.
(b) Administrative file. The Bureau of Resource Management will prepare an administrative file as a basis for determination in each case where an individual contests a claim to recover overpayment or requests waiver of recovery of the overpayment. On the basis of the administrative file, the Chief Financial Officer or his or her delegate, shall make the final administrative determination.
(c) Additional information. At any time before the final administrative decision, the Department may request the individual to supplement his or her submission with additional factual information and may request that the individual authorize the Department of State to have access to bank and other financial records bearing on the application of these regulations. If the individual, without good cause shown, fails or refuses to produce the requested additional information or authorization, the Department of State is entitled to make adverse inferences with respect to the matters sought to be amplified, clarified, or verified.
(d) Decision and right of appeal. The final administrative decision shall be reduced to writing and sent to the individual. If the decision is adverse to the individual, the notification of the decision shall include a written description of the individual’s rights of appeal to the Foreign Service Grievance Board. The Foreign Service Grievance Board shall consider any appeal under this part in accordance with the regulations of the Board set forth in 22 CFR part 901.
PART 18 – REGULATIONS CONCERNING POST EMPLOYMENT CONFLICT OF INTEREST
Subpart A – General Provisions
§ 18.1 Scope.
This part contains rules governing disciplinary action against a former officer or employee of the Department of State, including the Foreign Service, because of a violation of the post employment conflict of interest prohibitions. Such disciplinary action may include prohibition from practice before the Department of State and any component thereof as defined in this part.
§ 18.2 Definitions.
For the purpose of this part –
(a) The term Department means the Department of State and includes the Foreign Service.
(b) The term Director General means the Director General of the Foreign Service and Director of Personnel.
(c) The term practice means any informal or formal appearance before, or, with the intent to influence, any oral or written communication to the Department on a pending matter of business on behalf of any other person (except the United States).
§ 18.3 Director General.
The Director General shall institute and provide for the conduct of disciplinary proceedings involving former employees of the Department as authorized by 18 U.S.C. 207(j), and perform such other duties as are necessary or appropriate to carry out his/her functions under this part.
§ 18.4 Records.
The roster of all persons prohibited from practice before the Department shall be available to public inspection at the Office of Director General. Other records may be disclosed upon specific request, in accordance with appropriate disclosure regulations of the Department.
Subpart B – Applicable Rules
§ 18.5 Interpretative standards; advisory opinions.
(a) A determination that a former officer or employee of the Department violated 18 U.S.C. 207(a), (b) or (c) will be made in conformance with the standards established in the interpretative regulations promulgated, either in interim or final form by the Office of Government Ethics and published at 5 CFR part 737.
(b) Former officers and employees of the Department wanting to know whether a proposed course of conduct would be in conformity with the Act or the interpretive regulations thereunder may contact the Assistant Legal Adviser for Management to request an advisory opinion.
Subpart C – Administrative Enforcement Proceedings
§ 18.6 Authority to prohibit appearances.
Pursuant to 18 U.S.C 207(j), if the Director General finds, after notice and opportunity for a hearing, that a former officer or employee of the Department has violated 18 U.S.C. 207(a), (b) or (c), the Director General in his/her discretion may prohibit that person from engaging in practice before the Department for a period not to exceed five years, or may take other appropriate disciplinary action.
§ 18.7 Report of violation by a former employee.
(a) If an officer or employee of the Department has reason to believe that a former officer or employee of the Department has violated any provision of this part, or if any such officer or employee receives information to that effect, he/she shall promptly make a written report thereof, which report or a copy thereof shall be forwarded to the Director General. If any other person has information of such violations, he/she may make a report thereof to the Director General or to any officer or employee of the Department.
(b) The Director General shall coordinate proceedings under this part with the Department of Justice in cases where it initiates criminal prosecution.
§ 18.8 Institution of proceeding.
Whenever the Director General determines that there is sufficient reason to believe that any former officer or employee of the Department has violated 18 U.S.C. 207(a), (b) or (c), he/she may institute an administrative disciplinary proceeding. The proceeding may be for that person’s suspension from practice before the Department or for some lesser penalty. The proceeding shall be instituted by a complaint which names the respondent and is signed by the Director General and filed in his/her office. Except in cases of willfulness, or where time, the nature of the proceeding, or the public interest does not permit, a proceeding will not be instituted under this section until facts or conduct which may warrant such action have been called to the attention of the proposed respondent in writing and he/she has been accorded the opportunity to provide his/her position on the matter.
§ 18.9 Contents of complaint.
A complaint shall plainly and concisely describe the allegations which constitute the basis for the proceeding. A complaint shall be deemed sufficient if it fairly informs the respondent of the charges against him/her so that the respondent is able to prepare a defense. Written notification shall be given of the place and of the time within which the respondent shall file his/her answer, which time shall not be less than 15 days from the date of service of the complaint. Notice shall be given that a decision by default may be rendered against the respondent in the event he/she fails to file an answer.
§ 18.10 Service of complaint and other papers.
(a) Complaint. The complaint or a copy thereof may be served upon the respondent by certified mail; by delivering it to the respondent or his/her attorney or agent of record either in person; or by leaving it at the office or place of business of the respondent, attorney or agent; in any other manner which has been agreed to by the respondent; or by first-class mail in case of a person resident abroad.
(b) Service of papers other than complaint. Any paper other than the complaint may be served upon a respondent as provided in paragraph (a) of this section or by mailing the paper by first-class mail to the respondent at the last address known to the Director General, or by mailing the paper by first-class mail to the respondent’s attorney or agent of record. Such mailing shall constitute complete service.
(c) Whenever the filing of a paper is required or permitted in connection with a proceeding, and the place of filing is not specified by this subpart or by rule or order of the hearing examiner, the paper shall be filed with the Director General, Department of State, Washington, DC 20520. All papers shall be filed in duplicate.
§ 18.11 Answer.
(a) Filing. The respondent’s answer shall be filed in writing within the time specified in the complaint or notice of institution of the proceeding, unless on application the time is extended by the Director General. The answer shall be filed in duplicate with the Director General.
(b) Contents. The answer shall contain a statement of facts which constitute the grounds of defense, and it shall specifically admit or deny each allegation set forth in the complaint. The respondent may also state affirmatively special matters of defense.
(c) Failure to deny or answer allegations in the complaint. Every allegation in the complaint which is not denied in the answer shall be deemed to be admitted and may be considered as proved. Failure to file an answer within the time prescribed in the notice to the respondent, except as the time for answer is extended by the Director General shall constitute a waiver of hearing, and the Director General may make his/her decision by default without a hearing or further procedure.
§ 18.12 Motions and requests.
Motions and requests, including requests to intervene, may be filed with the Director General.
§ 18.13 Representation.
A respondent or proposed respondent may appear in person or he/she may be represented by counsel or other representative. The Director General may be represented by an attorney or other employee of the Department.
§ 18.14 Hearing examiner.
(a) After an answer is filed, if the Director General decides to continue the administrative disciplinary proceedings, he/she shall appoint a hearing examiner to conduct those proceedings under this part.
(b) Authorities. Among other powers, the hearing examiner shall have authority, in connection with any proceeding assigned or referred to him/her, to do the following:
(1) Take evidence under appropriate formalities;
(2) Make rulings upon motions and requests;
(3) Determine the time and place of hearing and regulate its course and conduct;
(4) Adopt rules of procedure and modify the same from time to time as occasion requires for the orderly disposition of proceedings;
(5) Rule upon offers of proof, receive relevant evidence, and examine witnesses;
(6) Take or authorize the taking of depositions;
(7) Receive and consider oral or written argument on facts or law;
(8) Hold or provide for the holding of conferences for the settlement or simplification of the issues by consent of the parties;
(9) Perform such acts and take such measures as are necessary or appropriate to the efficient conduct of any proceeding; and
(10) Make initial decisions.
§ 18.15 Hearings.
Hearings shall be stenographically recorded and transcribed and the testimony of witnesses shall be taken under oath or affirmation. Hearings will be closed unless an open hearing is requested by the respondent, except that if classified information or protected information of third parties is likely to be adduced at the hearing, it will remain closed. If either party to the proceeding fails to appear at the hearing, after due notice thereof has been sent to him/her, he/she shall be deemed to have waived the right to a hearing and the hearing examiner may make a decision against the absent party by default.
§ 18.16 Evidence.
The rules of evidence prevailing in courts of law and equity are not controlling in hearings under this part. However, the hearing examiner shall exclude evidence which is irrelevant, immaterial, or unduly repetitious.
§ 18.17 Depositions.
Depositions for use at a hearing may, with the consent of the parties in writing or the written approval of the hearing examiner, be taken by either the Director General or the respondent or their duly authorized representatives. Depositions may be taken upon oral or written interrogatories. There shall be at least 10 days written notice to the other party. The requirement of a 10-day written notice may be waived by the parties in writing. When a deposition is taken upon written interrogatories, any cross-examination shall be upon written interrogatories. Copies of such written interrogatories shall be served upon the other party with the notice, and copies of any written cross-interrogation shall be mailed or delivered to the opposing party at least 5 days before the date of taking the depositions, unless the parties mutually agree otherwise. Expenses in the reporting of depositions shall be borne by the party at whose instance the deposition is taken.
§ 18.18 Proposed findings and conclusions.
Except in cases where the respondent has failed to answer the complaint or where a party has failed to appear at the hearing, the hearing examiner, prior to making his/her decision, shall afford the parties a reasonable opportunity to submit proposed findings and conclusions and supporting reasons therefor.
§ 18.19 Decision of the hearing examiner.
As soon as practicable after the conclusion of a hearing and the receipt of any proposed findings and conclusions timely submitted by the parties, the hearing examiner shall make the initial decision. The decision shall include
(a) A statement of findings and conclusions, as well as the reasons or basis therefor, upon all the material issues of fact, law, or discretion presented on the record, and
(b) An order of suspension from practice before the Department or other appropriate disciplinary action, or an order of dismissal of the complaint. The hearing examiner shall file the decision with the Director General and shall transmit a copy thereof to the respondent or his/her attorney of record. A party adversely affected by the decision shall be given notice of his or her right to appeal to the Board of Appellate Review (part 7 of this chapter) within 30 days from the date of the hearing examiner’s decision.
§ 18.20 Appeal to the Board of Appellate Review.
Within 30 days from the date of the hearing examiner’s decision, either party may appeal to the Board of Appellate Review. The appeal shall be taken by filing notice of appeal, in triplicate, with the Board of Appellate Review, which shall state with particularity exceptions to the decision of the hearing examiner and reasons for such exceptions. If an appeal is by the Director General, he/she shall transmit a copy thereof to the respondent. Within 30 days after receipt of an appeal or copy thereof, the other party may file a reply brief, in triplicate, with the Board of Appellate Review. If the reply brief is filed by the Director General, he/she shall transmit a copy of it to the respondent. The Director General shall transmit the entire case record to the Board of Appellate Review within 30 days after an appeal has been taken.
§ 18.21 Decision of the Board of Appellate Review.
The Board of Appellate Review shall decide the appeal on the basis of the record. The decision of the Board shall be final, and not subject to further administrative review. Copies of the Board’s decision shall be forwarded promptly to the parties by the Board.
§ 18.22 Notice of disciplinary action.
Upon the issuance of a final order suspending a former officer or employee from practice before the Department, the Director General shall give notice thereof to appropriate officers and employees of the Department. Officers and employees of the Department shall refuse to participate in any appearance by such former officer or employee or to accept any communication which constitutes the prohibited practice before the Department during the period of suspension. The Director General shall take other appropriate disciplinary action as may be required by the final order.
PART 19 – BENEFITS FOR SPOUSES AND FORMER SPOUSES OF PARTICIPANTS IN THE FOREIGN SERVICE RETIREMENT AND DISABILITY SYSTEM
§ 19.1 Authorities.
Chapter 8 of the Foreign Service Act of 1980 (Pub. L. 96-465, 94 Stat. 2102) (hereafter “the Act”), and any Executive order issued under authority of section 827 of the Act.
§ 19.2 Definitions.
(a) Agencies means the Department, the Agency for International Development (AID), the International Communication Agency (USICA), the Foreign Agricultural Service (FAS), and the Foreign Commercial Service (FCS).
(b) Annuitant means any person including a former participant or survivor who meets all requirements for an annuity from the Fund under the provisions of the Foreign Service Act of 1980, or any other law and who has filed claim therefor.
(c) Basic salary means the salary fixed by law or administrative action before deductions and exclusive of additional compensation of any kind. It includes the salary fixed by sections 401, 402, 403, and 406 of the Act and salary incident to assignment under section 503 of the Act. Basic salary excludes premium pay for overtime, night, Sunday and holiday work, allowances, post and special differentials, and chargé pay.
(d) Chief of Mission means a principal officer in charge of a diplomatic mission of the United States or of a United States Office abroad which has been designated diplomatic in nature or any member of the Foreign Service assigned under the terms of the Act to be chargé d’affaires or head of such a mission or office.
(e) Child means, except with reference to lump-sum payments, an unmarried child, under the age of 18 years, or such unmarried child regardless of age who because of physical or mental disability incurred before age 18 is incapable of self-support. In addition to the offspring of the participant, the term includes:
(1) An adopted child;
(2) A stepchild or recognized natural child who received more than one-half support from the participant; and
(3) A child who lived with and for whom a petition of adoption was filed by a participant, and who is adopted by the surviving spouse of the participant after the latter’s death. “Child” also means an unmarried student under the age of 22 years. For this purpose, a child whose twenty-second birthday occurs before July 1 or after August 31 of a calendar year, and while a student, is deemed to have become 22 years of age on the first day of July after the birthday.
(f) Court means any court of any State or of the District of Columbia.
(g) Court Order means any court decree of divorce or annulment, or any court approved property settlement agreement incident to any court decree of divorce or annulment.
(h) Department means the Department of State.
(i) Divorce means the dissolution of a marriage by a final decree of divorce or annulment.
(j) Expressly provided for means a direction by a court order to divide a member’s Foreign Service Retirement benefits or survivor benefits and awarding a portion of such benefits to an eligible beneficiary.
(k) Former spouse
(l) Fund means the Foreign Service Retirement and Disability Fund.
(m) M/MED means the Department’s Office of Medical Services.
(n) Military and naval service means honorable active service:
(1) In the Armed Forces of the United States;
(2) In the Regular or Reserve Corps of the Public Health Service after June 30, 1960; or
(3) As commissioned officer of the National Oceanic and Atmospheric Administration or predecessor organization after June 30, 1961.
(o) Participant means a person as described in § 19.3.
(p) Previous spouse means any person formerly married to a principal, whether or not such person qualifies as a former spouse under paragraph (k) of this section.
(q) Principal means a participant or former participant whose service forms the basis for a benefit under chapter 8 of the Act for a spouse, previous spouse, former spouse or child of a participant.
(r) PER/ER/RET means the Department’s Retirement Division in the Bureau of Personnel.
(s) Pro rata share means, in the case of any former spouse of any participant or former participant, a percentage which is equal to the percentage that (1) the number of years and months during which the former spouse was married to the participant during the creditable service of that participant is of (2) the total number of years and months of such creditable service. When making this calculation, item (1) is adjusted in accordance with paragraph (k) of this section and item (2) is adjusted in accordance with § 19.4. In the total period, 30 days constitutes a month and any period of less than 30 days is not counted.
(t) Spousal agreement means any written agreement between a participant or former participant, and the participant’s spouse or former spouse.
(u) Student means a child regularly pursuing a full-time course of study or training in residence in a high school, trade school, technical or vocational institute, junior college, university, or comparable recognized educational institution. A child who is a student shall not be deemed to have ceased to be a student during any interim between school years, semesters, or terms if the interim or other period of nonattendance does not exceed 5 calendar months and if the child shows to the satisfaction of the Retirement Division (PER/ER/RET) that the child has a bona fide intention of continuing to pursue such course during the school year, semester, or term immediately following the interim.
(v) Surviving spouse means the surviving wife or husband of a participant or annuitant who, in the case of death in service or marriage after retirement, was married to the participant or annuitant for at least one year immediately preceding death or is the parent of a child born of the marriage.
(w) System means the Foreign Service Retirement and Disability System.
§ 19.3 Participants.
The following persons are participants in the System:
(a) Members of the Service serving under a career appointment or as a career candidate under section 306 of the Act (1) in the Senior Foreign Service, or (2) assigned to a salary class in the Foreign Service Schedule;
(b) Any person not otherwise entitled to be a participant who has served as chief of mission or an ambassador at large for an aggregate period of 20 years or more, exclusive of extra service credit for service at unhealthful posts, and who has paid into the Fund a special contribution for each year of service;
(c) Any individual who was appointed as a Binational Center Grantee and who completed, prior to February 15, 1981, at least 5 years of satisfactory service as a grantee, as determined by the Director of Personnel of USICA, or under any other appointment under the Foreign Service Act of 1946, as amended, who has paid into the Fund a special contribution for such service.
(d) Any person converted to the competitive service pursuant to section 2104 of the Act who elects to participate in the System pursuant to section 2106(b)(1) or (2) shall remain a participant so long as he/she is employed in an agency which is authorized to utilize the Foreign Service personnel system.
§ 19.4 Special rules for computing creditable service for purposes of payments to former spouses.
For purposes of determining the pro rata share of annuity, survivor annuity or lump-sum payable to a former spouse, the following shall be considered creditable service –
(a) The entire period of a principal’s approved leave without pay during full-time service with an organization composed primarily of Government employees irrespective of whether the principal elects to make payments to the Fund for this service;
(b) The entire period of Government service for which a principal received a refund of retirement contributions which he/she has not repaid unless the former spouse received under § 19.13 a portion of the (lump-sum) refund or unless a spousal agreement or court order provided that no portion of the refund be paid to the former spouse; and
(c) All creditable service including service in excess of 35 years.
§ 19.5 Required notifications to Department respecting spouses and former spouses.
§ 19.5-1 Notification from participant or annuitant.
If a participant or former participant becomes divorced on or after February 15, 1981, he/she shall notify the Department (PER/ER/RET) of the divorce on or prior to its effective date. The notice shall include the effective date of the divorce, the full name, mailing address, and date of birth of the former spouse and the date of the member’s marriage to that person, and enclose a certified copy of the divorce decree. If there is a court order or spousal agreement concerning payment or nonpayment of Foreign Service benefits to the former spouse, the original or a certified copy of the order or agreement shall also be forwarded to PER/ER/RET. In the absence of a court order or spousal agreement providing otherwise, the Department will pay a pro rata share of the member’s benefits to the former spouse. (A former spouse of a former participant who separated from the Service on or before February 15, 1981 is not eligible for a pension under § 19.9, i.e., not eligible for a pro rata share of the principal’s annuity.) Upon receipt of notice of a divorce, a court order, or spousal agreement, the Department will proceed as indicated in § 19.6 or § 19.7. Delinquent notice to the Department of the divorce of an annuitant will result in retroactive payments to any qualified former spouse to the extent that the retroactive payments can be deducted from future annuity payments to the principal as stated in § 19.6-4.
§ 19.5-2 Notification to Department from former spouses.
A former spouse is obligated to notify the Department of the following on a timely basis:
(a) A divorce from a participant or former participant when the former spouse is notified by the court of the divorce before the participant is notified;
(b) Any change in address; and
(c) Any remarriage.
§ 19.5-3 Residence of spouse during service at unhealthful post.
(a) The calculation of the pro rata share of benefits for a former spouse, and the determination of whether a person qualifies as a “former spouse” depends on the length of the marriage. The latter, under the definition in the Act and when the principal has received extra service credit for an assignment to an unhealthful post, depends upon whether a spouse has resided with the principal at the unhealthful post. In order to determine residency for this purpose, whenever a married participant is assigned to an unhealthful post for which he/she does not receive post differential and does receive or request extra service credit, the participant shall report on Form OF-140, Election to Receive Extra Service Credit Towards Retirement, whether his/her spouse is or is not residing at the post. Although a chief of mission is not required to submit Form OF-140 in order to receive extra credit for service at an unhealthful post, he/she must nevertheless submit this form if the chief of mission has a spouse that does not accompany him/her at post for the entire assignment. Both the participant and spouse shall sign the completed form. If there is a change in residence of the spouse during the assignment, a new joint Form OF-140 shall be filed to report the change.
(b) Whenever a participant retires or becomes divorced, or whenever a former participant becomes divorced who has extra service credit for assignment at unhealthful posts completed prior to the issuance of this regulation who was married during at least a portion of the assignment, the participant or former participant shall submit a statement to PER/ER/RET reporting on whether his/her spouse resided at the unhealthful post and the dates of such residence. The statement shall be signed by the principal and his/her spouse or former spouse whenever possible.
(c) In the event of a disagreement between a principal and his/her spouse or former spouse concerning residency at an unhealthful post, or the submission of a report or statement by a principal showing a period of nonresidence at a post by a spouse which is not signed by the spouse, the determination of residence will be made by PER/ER/RET and based on records in the Department of payments for travel and allowances plus any other evidence that can be adduced. In the absence of any evidence to the contrary, the assumption will be made that the spouse resided at the post.
§ 19.6 Court orders and divorce decrees.
§ 19.6-1 Orders by a court.
(a) A court may –
(1) Fix the amount of any pension to a former spouse under § 19.9, or order that none be paid;
(2) Fix the amount of any regular survivor annuity to a former spouse under paragraphs (a) and (b) of § 19.11, or order that none be paid;
(3) Order provision of an additional survivor annuity for a spouse or former spouse under § 19.10-5;
(4) Fix the amount of any benefit under § 19.10-6 based on recall service payable to a former spouse to whom the annuitant was married during any portion of the recall service, or order that none be paid;
(5) Fix the amount of any lump-sum payable to a former spouse under § 19.13 or order that none be paid;
(6) Order, to the extent consistent with any obligation stated in § 19.8 between a participant and a former spouse, and pursuant to any court decree of divorce, legal separation or annulment or any court ordered or approved property settlement agreement incident to any court decree of divorce, legal separation, or annulment, that any payment from the Fund which would otherwise be made to a former participant based on his/her service shall be paid (in whole or in part) by the Secretary of State to a previous spouse or child of such participant. No apportionment under this paragraph may be made of a payment authorized to be paid to a survivor of a participant or annuitant.
(b) An order by a court that does not meet the definition of “court” in § 19.2(f) is not valid for purposes of this section even though a divorce decree issued by such court may be a basis for pro rata share payments to a former spouse as described in these regulations.
§ 19.6-2 Qualifying court order.
(a) To be valid for purposes of this section, a court order must be found to be “qualified” by PER/ER/RET acting for the Secretary of State. A qualifying court order must –
(1) Be consistent with the terms of the Act and applicable regulations;
(2) Not direct payment of an amount in excess of the maximum amount authorized to be paid by the relevant regulation;
(3) Direct that payments be made to an eligible beneficiary from a principal’s Foreign Service retirement benefit or survivor benefit. If a court directs or implies that a principal, rather than the Secretary of State or the Government, make the payments, the order will not be considered qualified unless the principal does not object during the 30-day notice period provided under § 19.6-6;
(4) Define the amount to be paid to a beneficiary in way so that it can be readily calculated from information in the normal files of the Department;
(5) Not make payment contingent upon events other than those on which other payments from the Fund are based such as age, marital status and school attendance; and
(6) Not be in conflict with any previously issued court order which remains valid.
(b) No apportionment of annuity to a beneficiary under § 19.6-1(a) (1) or (6) shall exceed the net annuity of the principal. The net annuity is computed by excluding from the gross annuity the amounts which are:
(1) Owed by the individual to the United States;
(2) Deducted for health benefits premiums pursuant to section 8906 of Title 5, United States Code;
(3) Deducted for life insurance premiums under the Government Life Insurance Program;
(4) Owed due to overpayment of annuity;
(5) Properly withheld for Federal income tax purposes, if amounts withheld are not greater than they would be if the individual claimed all dependents to which he/she was entitled.
§ 19.6-3 Application for payment.
(a) To receive payment from the Fund pursuant to a court award, the beneficiary must submit an application in writing to the Chief of the Retirement Division (PER/ER/RET), Department of State, Washington, DC 20520. The application must be typed or printed, signed by the beneficiary, and include –
(1) The full name, date of birth, current address and current marital status of the beneficiary;
(2) Full name and date of birth of the participant or former participant and his/her date of birth or other identifying information;
(3) Relationship to the beneficiary, and if a spouse or former spouse, date of marriage to and/or divorce from the participant;
(4) A statement that the court order has not been amended, superseded, or set aside;
(b) When payments are subject to termination upon the occurrence of a condition subsequent, such as marriage, remarriage or termination of schooling, or death of the principal, no payment will be made until the beneficiary submits a statement to PER/ER/RET that –
(1) The condition has not occured;
(2) He/she will notify the Department (PER/ER/RET) within 15 calendar days of the occurrence of the condition subsequent; and
(3) He/she will be personally liable for any overpayment to him/her resulting from the occurrence of the condition subsequent. PER/ER/RET may require periodic recertification of these statements.
§ 19.6-4 Date of court orders.
(a) A court order directing or barring payment of a pension to a former spouse under § 19.9 may not be given effect by the Department if it is issued more than 12 months after the divorce becomes final. A court order adjusting the amount of a regular or additional survivor annuity to a former spouse under § 19.11-2 or § 19.10-5 may not be given effect by the Department if it is issued after the death of the principal.
(b) A court order issued within 12 months after a divorce becomes final directing payment of a pension to a former spouse in an amount other than provided in § 19.9 may be made retroactively effective to the first of the month in which the divorce becomes final if so specified by the court. In such event, the Department will adjust any future payments that may become due to an annuitant and a former spouse by increasing one and correspondingly reducing the other in order to give effect to the order of the court. However, if future payments to one party are not due, as for example if a court orders that no payments be made to a former spouse, or that 100 percent of an annuity be paid as pension to a former spouse, the Department will not give retroactive effect to a court order by collecting overpayments from one party in order to pay them to the other party and will not make overpayments from the Fund.
(c) A court order under this chapter involving any payment other than a pension to a former spouse under § 19.9 may not be given retroactive effect and shall not be effective until it is determined to be a qualifying order under § 19.6-5.
§ 19.6-5 Preliminary review.
(a) Upon receipt of an application for payment under § 19.6-3, PER/ER/RET will determine whether –
(1) The application is complete;
(2) The applicant is an eligible beneficiary under this chapter; and
(3) The court order is a qualifying order. If the application is completed, the beneficiary is eligible and the court order appears on its face to be a qualifying order, PER/ER/RET will provide the notification required by § 19.6-6, otherwise, it will notify the applicant of any deficiency or requirement for additional information, and if the order is determined to be non-qualifying, the basis for such determination.
(b) Upon receipt of a certified copy of a final decree of divorce, PER/ER/RET will determine whether –
(1) It is a valid decree. Any decree recognized as valid by the parties will be considered valid for this purpose. In addition, any non-recognized decree will be considered valid for this purpose unless:
(i)(A) Neither party was domiciled within the court’s jurisdiction, and
(B) The party denying recognition did not participate in the proceedings, or
(ii) The party denying recognition was not afforded notice of the proceedings (actual or constructive);
(2) A related court order has been submitted by either party; and
(3) A pro rata share payment is or may become due the former spouse. If a divorce decree is deemed valid under this paragraph, a pro rata share payment is due a former spouse unless PER/ER/RET is in receipt of a court order which it has deemed qualified under paragraph (a) of this section, or a valid spousal agrement providing otherwise. If it determines that a pro rata share payment is due, it will provide the notification required by § 19.6-6, otherwise, unless action is being taken pursuant to a related court order, it will notify both parties to the divorce the reason a pro rata share payment is not payable.
§ 19.6-6 Notification.
(a) Notification to a principal. Whenever PER/ER/RET receives from a former spouse or other eligible beneficiary –
(1) a court order which it deems qualified that requires payment to the beneficiary; or
(2) A final decree of divorce which it deems valid together with a request for a pro rata share payment – PER/ER/RET will send a copy of the document to the principal and a notice stating: (i) That PER/ER/RET deems the order qualified or the divorce decree valid, (ii) that payments will be made from the principal’s account to the beneficiary and the effective date of such payments, (iii) the effect of such payments on the principal’s retirement benefit. In the case of any court order with retroactive or immediate effect, and in the case of pro rata share payments, the amounts will be withheld from future payments to the principal but will not be paid to the beneficiary for 30 days from the notice date in order to give the principal an opportunity to contest the court order or the validity of the divorce.
(b) Notification to a former spouse. When PER/ER/RET receives from a principal – (1) a court order which it deems qualified that requires or forbids payment to a former spouse; or (2) a final decree of divorce which it deems valid without an accompanying court order – PER/ER/RET will send a copy of the document to the former spouse and a notice stating: (i) That PER/ER/RET deems the court order qualified or the divorce decree valid, (ii) that PER/ER/RET intends to honor the court decree or to make pro rata share payments because of the divorce, (iii) the effective date, exact amount, and method of calculation of any payments to the former spouse.
§ 19.6-7 Decision.
(a) When a response has not been received by PER/ER/RET from a principal within the 30-day period under § 19.6-6a, payment will be made in accordance with the notification. When a response is received, the Chief, PER/ER/RET will consider the response. If it is shown that a court order is not qualifying or that a divorce is not valid under terms of the Act and these regulations, payment proposed in the notification will not be made. In such a case, PER/ER/RET will advise both parties of the basis for its decision and the alternative action, if any, that it proposes to take.
(b) If a principal responding to a notification under § 19.6-6a objects to the payment or other action proposed by the Department in the notification based on the validity of the court order or divorce decree, and the record contains support for the objection, PER/ER/RET will grant the principal 30 days to initiate formal legal action to determine the validity of the objection, will continue to delay payment to the former spouse or other beneficiary during this period, and will notify the beneficiary of this action. If evidence is submitted that formal legal action has been started within the 30-day period, the amount of any proposed payment to a former spouse or other beneficiary will continue to be withheld from any payments due the principal, but no payment will be made to the former spouse or other beneficiary until a judicial decision is rendered or agreement reached between the parties.
§ 19.6-8 Allotment to beneficiary.
If a court order is not a qualifying court order because it directs or implies that payment to the beneficiary is to be made by the principal rather than the Secretary of State, the principal may make an allotment to the beneficiary from his/her annuity. An annuitant may also make an allotment from his/her annuity to a previous spouse in the absence of a court order.
§ 19.6-9 Limitations.
(a) Retirement benefits are subject to apportionment by court order under § 19.6-1(a)(6) only while the principal is living. Payment of apportioned amounts will be made only to a previous spouse and/or the children of the principal. Such payments will not be made to any of the following:
(1) Heirs or legatees of the previous spouse;
(2) Creditors of either the principal or the previous spouse; or
(3) Assignees of either the principal or the previous spouse.
(b) The amount of any court ordered payment may not be less than one dollar and, in the absence of compelling circumstances, shall be in whole dollars.
(c) In honoring and complying with a court order, the Department shall not be required to disrupt the scheduled method of accruing retirement benefits or the normal timing for making such payments, despite the existence of any special schedule relating to a previous spouse or other beneficiary.
(d) In cases where the court order apportions a percentage of the retirement benefits, PER/ER/RET will initially determine the amount of proper payment. That amount will only be increased by future cost-of-living increases unless the court directs otherwise.
§ 19.6-10 Liability.
(a) The Department shall not be liable for any payment made from retirement benefits pursuant to a court order if such payment is made in accordance with the provisions of this chapter.
(b) In the event that the Secretary is served with more than one court order with respect to the same retirement benefits, the benefits shall be available to satisfy the court orders on a first-come, first-served basis.
(c) A previous spouse or other beneficiary may request that an amount be withheld from the retirement benefits of a principal or survivor of a principal which is less than the amount stipulated in a court order, or otherwise scheduled to be paid to the beneficiary under this chapter. This lower amount will be deemed a complete fulfillment of the obligation of the Department for the period in which the request is in effect. See § 19.14.
§ 19.7 Spousal agreements.
§ 19.7-1 Purpose.
A spousal agreement may be used by both parties to establish an agreed-upon level of benefits to a spouse or a former spouse and to relieve the participant of responsibility for providing a higher level of benefits.
§ 19.7-2 Agreement with spouse.
(a) A spousal agreement between a participant and a spouse may waive or fix the level of a regular survivor annuity under § 19.11-3. If an agreement is filed, it will assure the spouse that the agreed-upon level of survivor annuity will be paid, irrespective of a future divorce provided the survivor meets the definition of “former spouse” in § 19.2(k). If an agreement is not filed, the participant’s annuity will be reduced under § 19.10-2 to provide the maximum regular survivor annuity for the spouse, but in the event of a future divorce if the spouse meets the definition of “former spouse,” that person will be entitled only to a pro rata share of the survivor annuity. An agreement under this paragraph may be filed with PER/ER/RET at any time prior to retirement (commencement of the principal’s annuity).
(b) A spousal agreement between an annuitant and a spouse filed with PER/ER/RET before commencement of a supplemental annuity for recall service may waive a supplemental survivor annuity that would otherwise be provided for a spouse under § 19.10-6.
(c) A spousal agreement between a participant or former participant and a spouse may be filed with PER/ER/RET at any time in accordance with § 19.10-5 and provide for an additional survivor annuity for the spouse.
(d) A spousal agreement filed under paragraph (a), (b), or (c) remains valid and binding in the event of divorce if the spouse qualifies as a former spouse.
§ 19.7-3 Agreement with former spouse.
(a) A spousal agreement between a participant or former participant and a former spouse may waive, reduce or increase the following benefits for a former spouse;
(1) A pension under § 19.9;
(2) A regular survivor annuity under § 19.11-2;
(3) A supplemental survivor annuity under § 19.10-6;
(4) A lump sum payment for regular or recall service under § 19.13.
(b) A spousal agreement between a participant or former participant and a former spouse may be filed with PER/ER/RET at any time in accordance with § 19.10-5 to provide an additional survivor annuity for the former spouse.
§ 19.7-4 Form of agreement.
(a) A spousal agreement is any legal agreement between the parties accepted by PER/ER/RET as meeting the requirements of this section. If in accordance with the regulations, PER/ER/RET will accept as a valid spousal agreement a property settlement agreed to by the parties and approved by a court regardless of the date of the agreement.
(b) A spousal agreement must either be authenticated by a court or notarized.
§ 19.7-5 Limitations.
(a) A spousal agreement may not provide for any payment from the Fund in excess of the amount otherwise authorized to be paid, or at a time not authorized by these regulations, or to a person other than a spouse or former spouse.
(b) A spousal agreement must be filed with the Department, Attention PER/ER/RET, and accepted by that office as in conformance with the Act and these regulations prior to the times specified in §§ 19.7-2 and 19.7-3. That office will provide advice to the parties on the validity of any proposed agreement and on proper format.
(c) A spousal agreement may apply only to payments from the Fund for periods after receipt of a valid agreement by the Department.
(d) Paragraphs (b), (c) and (d) of §§ 19.6-9 and 19.6-10 apply to spousal agreements and payments made pursuant to spousal agreements to the same extent that they apply to court orders and court ordered payments.
§ 19.7-6 Duration and precedence of spousal agreements.
(a) A spousal agreement may be revised or voided by agreement of the parties (by filing a new agreement under this section) at any time prior to the last day for filing an agreement determined in accordance with § 19.7-2 or § 19.7-3, except spousal agreements for additional survivor annuities are irrevocable. After the last day for filing a particular agreement, such agreement is irrevocable.
(b) A valid spousal agreement entered into subsequent to the issuance of a court order affecting the same parties will override the court order, and shall govern payments from the Fund.
(c) A spousal agreement may not override a previous spousal agreement involving the same principal but a different spouse or former spouse without agreement of such spouse or former spouse.
§ 19.8 Obligations of members.
Participants and former participants are obligated by the Act and these regulations to provide the following benefits to others and must accept the necessary reductions in their own retirement benefits to meet these obligations:
(a) A pension to a former spouse pursuant to § 19.9;
(b) A court ordered apportionment of annuity to a previous spouse or child under § 19.6-1 (a)(6) (the benefit to a child referred to here is paid during the annuitant’s lifetime as distinguished from the automatic survivorship annuity to a child described in § 19.11-7);
(c) A regular survivor annuity to a former spouse who has not remarried prior to age 60, and to a spouse to whom married when annuity commences, pursuant to §§ 19.11-2 and 19.11-3;
(d) An additional survivor annuity for a spouse or former spouse under § 19.10-5 when elected by the participant or ordered by a court;
(e) Lump-sum payments to a former spouse pursuant to § 19.13;
(f) Benefits ordered by a court under § 19.6 or specified in a spousal agreement under § 19.7.
§ 19.9 Pension benefits for former spouses.
§ 19.9-1 Entitlement.
(a) Unless otherwise expressly provided by a spousal agreement under § 19.7 or a court order under § 19.6, a person who, after February 15, 1981, becomes a former spouse of a participant (or former participant who separated from the Service after February 15, 1981) and who has not remarried prior to becoming 60 years of age, becomes entitled to a monthly pension benefit effective on a date determined under § 19.9-2 in an amount determined under § 19.9-3.
(b) A former spouse shall not be qualified for a pension under this subsection if, before the commencement of that pension, the former spouse remarries before becoming 60 years of age.
(c) A pension benefit under this section is treated the same as a survivor annuity for purposes of § 19.11-5(b): a former spouse who elects to receive a pension under this section must waive simultaneous receipt of any survivor annuity.
§ 19.9-2 Commencement and termination.
(a) The pension of a former spouse under this subsection commences on the latter of the day the principal becomes entitled to a Foreign Service annuity or on the first day of the month in which the divorce becomes final. (Suspension or reduction of a Foreign Service annuity because or reemployment does not affect the commencement of a pension to a former spouse.) In the case of any former spouse of a disability annuitant, the pension of such former spouse shall commence on the latter of:
(1) The date the principal would qualify for an annuity (other than a disability annuity) on the basis of his/her creditable service;
(2) The date the disability annuity begins; or
(3) The first of the month in which the divorce becomes final.
(b) The pension of a former spouse and the right thereto terminate on:
(1) The last day of the month before the former spouse dies or remarries before 60 years of age; or
(2) The date the annuity of the former participant terminates unless the termination results from recall, reappointment or reinstatement in the Foreign Service or reemployment in Government service.
§ 19.9-3 Computation and payment of pension to former spouse.
(a) A pension to a former spouse is paid monthly on the same date that annuity is paid to the principal.
(b) No spousal agreement or court order may provide for a pension or any combination of pensions to former spouses of any one principal which exceeds the net annuity of the principal as defined in § 19.6-2(b).
(c) A pension to a former spouse not fixed by a spousal agreement or court order shall equal the former spouse’s pro rata share of 50 percent of the annuity to which the principal is entitled on the date the divorce becomes final, or, if not then entitled to an annuity, 50 percent of the annuity to which the principal first becomes entitled following that date. A pension to a former spouse of a disability annuitant shall be calculated on the basis of an annuity for which the participant would qualify if not disabled. A pension to a former spouse will be increased by the same percentage of each cost-of-living adjustment received by the principal.
(d) The Department will initiate payment of a pension to a former spouse after complying with the notification and other procedures described in § 19.6.
(e) If a pension can not be paid because a former spouse is missing, the principal may file an affidavit with PER/ER/RET that he/she does not know the whereabouts of the former spouse. In such an event, the principal and the Department will follow the procedures in § 19.11-4 in an effort to locate the former spouse. The annuity of the principal will be reduced by the amount of the pension to the former spouse even though the latter is not being paid. If the former spouse has not been located during the 12-month period following the date the principal files an affidavit under this section, the annuity of the principal will be recomputed effective from its commencing date (or on the date following the last month a pension payment was made to the former spouse) and paid without reduction of the amount of pension to the former spouse. If the former spouse subsequently is located, pension payments to him/her will be initiated at that time at the rate that would have been payable had they been paid continuously from the original effective date. The Department shall not be liable to make any pension payments to the former spouse for the missing period if the procedures under this section were faithfully complied with nor will the Department be responsible for recovering any payments made to the principal for the benefit of the former spouse.
§ 19.9-4 Effect on annuitant.
Any pension payable to a former spouse under this section or pursuant to any spousal agreement or court order shall be deducted from the annuity of the principal. (See § 19.6-4 concerning retroactive adjustments.) If the annuity of such a principal in any month is discontinued or reduced so that the net amount payable is less than the pension to the former spouse or spouses of the principal because of recall, reappointment or reinstatment in the Foreign Service or reemployment in the Government service, the principal’s salary, rather than annuity, shall be reduced by the amount of the pension payment(s). Such salary reductions shall be deposited in the Treasury to the credit of the Fund. If a pension to a former spouse is discontinued for any reason except a suspension pending a determination of entitlement, the annuity of the principal shall be recomputed effective as of the date of discontinuance of the pension, and paid as if the pension to the former spouse had never been deducted.
§ 19.10 Types of annuities to members.
§ 19.10-1 Full annuity.
If a participant retires and does not provide a survivor annuity to a spouse, former spouse or designated beneficiary, the participant receives a “full” annuity. A full annuity means an annuity computed without any survivorship reduction. Example: Average salary $20,000 and maximum of 35 years of service.
| Average basic annual salary for high 3 consecutive years of service | $20,000 |
| Multiplied by 2 pct | .02 |
| $400.00 | |
| Multiplied by 35 years of creditable service | .35 |
| Full annuity | $14,000 |
§ 19.10-2 Reduced annuity with regular survivor annuity to spouse or former spouse.
(a) At commencement of annuity, a participant or former participant may provide a regular survivor annuity for any eligible former spouse and, within the limits of paragraph (b) of this section, a regular survivor annuity to any spouse to whom he/she is then married as described in §§ 19.11-2 and 19.11-3, respectively. A regular survivor annuity for a spouse or former spouse equals 55 percent of the portion of the retiree’s annuity (up to the full amount) designated as the base for the survivor annuity. To provide the survivor annuity, the participant must accept a reduction in his/her full annuity equal to 2
Participant’s full annuity as computed in § 19.10-1: $14,000.
Maximum regular survivor annuity is 55 percent of full annuity: $7,700.
Case I (Participant has a spouse and former spouse at retirement) If the pro rata share for a former spouse is 75 percent, the base for this benefit will be 75 percent of $14,000: $10,500.
The base for the maximum regular survivor annuity for a spouse would then be 25 percent of $14,000, or $3,500.
Combined base: $14,000.
Participant’s full annuity reduced as follows:
2
Plus 10 percent of the amount over $3,600 ($14,000-3,600) $10,400: $1,040.
Total reduction in participant’s full annuity: $1,130.
Participant’s reduced annuity: $12,870.
Survivor annuity for former spouse: 55 percent of $10,500 or $5,775.
Survivor annuity for spouse: 55 percent of $3,500 or $1,925.
Case II (Participant married at retirement with no former spouse. All calculations made without reference to cost-of-living increases described in § 19.11-5d.)
Joint election of base for regular survivor annuity of 90 percent of the maximum, or 90 percent of $14,000: $12,600.
Participant’s full annuity reduced as follows:
2
Plus 10 percent of the amount over $3,600 ($12,600-3,600) $9,000: $900.
Total reduction in participant’s full annuity: $990.
Participant’s reduced annuity: $13,010.
In this example, if divorce occurs subsequent to retirement and a court orders a 75 percent share for the former spouse, the base for the survivor annuity for the former spouse would be 75 percent of $14,000: $10,500.
The participant’s full annuity would then be reduced by $780 in accordance with the above formula for this survivor benefit, and the reduced annuity would be $14,000-780: $13,220.
If the former spouse qualifies for a pension as described in § 19.9 based on a pro rata share of 75 percent, the pension would equal 50 percent of the participant’s reduced annuity times 75 percent (50% × $13,220 × 75%): 4,957.50.
The participant’s reduced annuity would then be further reduced by this pension ($13,220-$4,957.50) to provide an annuity to the former participant of $8,262.50.
If this annuitant later remarried, the maximum base for the regular survivor annuity for the new spouse would be the amount designated at retirement, $12,600, less the amount committed to the former spouse, $10,500: $12,600-10,500 or $2,100.
The survivor annuity for this spouse: 55 percent of $2,100 or $1,555.
The election of this benefit for the new spouse would be made individually by the annuitant since a marriage after retirement does not give a spouse a right to participate in the election.
If the election is made to provide a regular survivor annuity to the new spouse, all of the above calculations would be recomputed effective the first day of the month beginning one year after the date of the remarriage, as follows:
Base for survivor annuity for former spouse: 75% of $14,000 or $10,500.
Survivor annuity for former spouse: 55% of $10,500 or $5,775.
Base for survivor annuity for spouse: 15% of $14,000 or $2,100.
Survivor annuity for spouse: 55% of $2,100 or $1,555.
The combined base for the survivor benefits is $10,500 plus $2,100 or $12,600. The annuity reduction on this combined base as computed above is $990.
The participant’s annuity after reduction for survivor benefit would be $14,000-$990 or $13,010.
The pension for the former spouse would be 50% × $13,010 × 75% or $4,878.75.
The participant’s annuity would be further reduced by this amount: $13,010-$4,878.75 to provide an annuity after this recalculation of $8,131.25.
(b) The maximum regular survivor annuity or combination of regular survivor annuities that may be provided under this section is limited to 55% of the principal’s full annuity computed at retirement. If an annuitant is recalled to active duty in the Foreign Service, he/she may provide additional regular survivor annuities under § 19.10-6. The maximum regular survivor annuity or combination of regular survivor annuities that an annuitant who was married at retirement may elect or provide, pursuant to a court order or otherwise, after retirement in the event of his/her divorce or remarriage, is limited to the amount provided at the time of initial retirement or reversion to retired status following recall service.
§ 19.10-3 Marriage after retirement.
If an annuitant who was unmarried at the time of retirement, marries, he/she may within one year after such marriage irrevocably elect to receive a reduced annuity and to provide, subject to any obligation to provide a survivor annuity for a former spouse, a survivor annuity for the new spouse. If such an election is made, the principal’s annuity shall be reduced in accordance with § 19.10-2 effective on the first day of the first month which begins at least one year after the date of the marriage. The reduction is computed on the commencing rate of the principal’s annuity.
§ 19.10-4 Death or divorce of a spouse and remarriage after retirement.
(a) If the marriage of an annuitant who received a reduced annuity at retirement under § 19.10-2 to provide a survivor annuity for a spouse is dissolved by divorce or by death of the spouse, the retiree’s annuity shall be recomputed, if necessary, as of the first of the month following the death or divorce. If the marriage was dissolved by death, the annuity shall be recomputed and paid at its full amount. If the marriage is dissolved by divorce, procedures in § 19.11-2(b) shall be followed.
(b) In the event an annuitant affected by this paragraph remarries, the annuitant may elect within one year of remarriage to provide a survivor annuity for the new spouse equal in amount to the survivor benefit formerly in effect for the previous spouse less any amount committed for a former spouse. The annuity of a retiree making such an election shall be reduced effective on the first day of the first month which begins at least one year after the remarriage to the amount that would have been payable had there been no recomputation under paragraph (a) of this section.
§ 19.10-5 Reduced annuity with additional survivor annuity to spouse or former spouse.
(a) General. This section provides an opportunity for a participant or former participant who has provided a regular survivor annuity to a former spouse to provide a survivor annuity to a second spouse or to another former spouse. The additional survivor annuity provided under this section generally is more costly than the regular survivor annuity because the participant is required to pay it’s full cost by deduction from salary or annuity, or otherwise, as specified in paragraph (e) of this section. The participant must also be in normal health for his/her age and pass a physical examination prescribed by the Secretary of State (M/MED) to be eligible to provide an additional survivor annuity under this section.
(b) Limitation on amount. Neither the total amount of additional survivor annuity or annuities under this section provided by any participant or former participant nor any combination of regular or additional survivor annuities for any one surviving spouse or former spouse of a principal may exceed 55 percent of the principal’s full annuity counting any supplemental annuity or recomputation of annuity because of recall service. An additional survivor annuity provided by any principal shall be further limited to the amount that can be provided by a monthly payment which is not greater than the principal’s net annuity described in § 19.6-2(b). The amount of any additional survivor annuity provided by a spousal agreement effective prior to the principal’s retirement, shall be reduced as necessary by PER/ER/RET after the principal’s retirement to comply with this limitation. Any amount paid by a participant for the portion of additional survivor annuity cancelled pursuant to this paragraph shall be treated as an additional lump sum payment under paragraph (e) of this section and used to increase the amount of the additional annuity. A participant who separates from the Service without entitlement to any annuity is not entitled to provide an additional survivor annuity. Payments in such a case would be discontinued as described in paragraph (e) of this section.
(c) Procedures to grant additional survivor annuity. A participant or former participant who has provided a regular survivor annuity to a former spouse who wishes to provide, or who is ordered by a court to provide an additional survivor annuity under this section to a spouse or another former spouse, shall do so by filing a spousal agreement with PER/ER/RET on a form acceptable to PER/ER/RET. Such an agreement will be irrevocable when accepted by PER/ER/RET unless the beneficiary of the additional survivor annuity is subsequently made a beneficiary of a regular survivor annuity in equal amount. Within the limitations specified in paragraph (b) of this section, an individual may be made the beneficiary of both a regular and an additional survivor annuity. A spousal agreement granting an additional survivor annuity to a spouse will remain valid in the event the marriage is dissolved and the spouse qualifies as a former spouse under the definition § 19.2(k).
(d) Eligibility for additional survivor annuity. A spouse or former spouse must meet the same criteria (§ 19.2(v) or § 19.2(k)) to be eligible for an additional survivor annuity as a spouse or former spouse must meet to be eligible for a regular survivor annuity. Payment of a special survivor annuity will commence on the day after the participant dies and shall terminate on the last day of the month before death or remarriage before attaining age 60. If it is discontinued because of remarriage, it will not be resumed.
(e) Payment for additional survivor annuity. (1) Payment for an additional survivor annuity will commence on the first of the month following the effective date of a spousal agreement provising the additional survivor annuity. The effective date will be the date of acceptance of the spousal agreement by PER/ER-RET (upon a finding that the agreement conforms to the law and regulations) or such later date as may be specified in the agreement. No payment will be made to a beneficiary under the agreement if the principal dies before its effective date. Accordingly, in order to give protection to a beneficiary during active service, the agreement must be made effective, and payment commence, during active service. Payment will be made by a participant or annuitant by deduction from salary or annuity. Payment will be made by a former participant while awaiting commencement of a deferred annuity by direct payment to the Department, Office of Financial Operations (M/COMP/FO). Payments not received by the due date may, at the option of M/COMP/FO and with notice to the principal and the beneficiary be collected from the principal’s lump-sum account. Amounts so collected must be repaid by the principal with interest compounded at 10 percent annually to prevent exhaustion of the lump-sum account. If the lump-sum account does become exhausted, any rights to the lump-sum payment under § 19.13 and survivorship rights under this paragraph will expire on that date. If the principal dies with an amount owing, it shall be collected by set off from the survivor annuity or lump-sum account.
(2) Monthly payments may be reduced or eliminated by direct payment to M/COMP/FO by any participant or former participant under terms mutually agreed upon by the participant and PER/ER/RET. Minimum monthly payments will be based upon actuarial tables prescribed from time to time by the Director General of the Foreign Service (M/DGP) with the advice of the Secretary of Treasury. Such tables will be calculated so that the present value of all payments equal the present value of the survivor annuity. If new tables are prescribed, they would be applicable to additional survivor annuities provided by spousal agreements that become effective on or after the effective date of the new tables. Additional survivor annuities will be increased by regular cost-of-living adjustments from their commencing dates only when so specified at the option of the participant or former participant in a spousal agreement. Monthly payments will be higher if cost-of-living adjustments are provided.
(3) In the event of the disqualification of a beneficiary for an additional survivor annuity because of death, remarriage prior to age 60 or divorce from the principal and failure to meet the definition of “former spouse,” or in the event of an authorized reduction or cancellation of an election for an additional survivor annuity, the monthly payment for such discontinued or reduced additional survivor annuity will be discontinued or reduced, as appropriate, effective at the beginning of the first month following termination or reduction of the benefit. Except as otherwise specified in paragraph (b) of this section, any amount paid for such discontinued or reduced benefit by a participant or former participant in excess of the minimum monthly payments described above shall be refunded to the participant or former participant with interest calculated at the annual rate used in the last evaluation of the System or at such higher rate as may be authorized by M/COMP/FO as will not cause a loss to the Fund. The following table illustrates the minimum monthly payments schedule in effect February 15, 1981.
| Age of principal and beneficiary on effective date of spousal agreement | Minimum monthly payment required to provide an additional survivor annuity of $100 per month. | |
|---|---|---|
| Without COLA | With COLA | |
| 40 | $7.49 | $12.34 |
| 50 | 14.18 | 22.01 |
| 60 | 23.55 | 33.90 |
| 70 | 35.57 | 47.12 |
(4) Reduction from annuity to a principal to pay for an additional survivor annuity will be in the nature of an allotment and will not affect computations of cost-of-living adjustments to the principal.
§ 19.10-6 Benefits for recall service.
(a) Annuity of recalled participant. Any participant who is recalled to the Service under section 308 of the Act, shall, while serving, be entitled in lieu of annuity to the full salary of the class in which serving. During such service, the recalled annuitant shall make contributions to the Fund under section 805(a) of the Act. If a share of the annuity is being paid as a pension to a former spouse under § 19.9, that share shall be deducted from the salary of the recalled annuitant during the period of the recall service. Upon reversion of the annuitant to retired status, any pension payable to a former spouse that was being deducted from the salary of the principal shall again be deducted from the annuity of the principal which shall be determined as follows:
(1) If the recall service lasts less than one year, a refund of retirement contributions made during the recall period will be refunded under § 19.13 and the former annuity will be resumed at the previous rate adjusted by any cost-of-living increases that became effective during recall service.
(2) If the recall service lasts between one and five years, the annuitant will be entitled to elect benefits under paragraph (a)(1) of this section or receive both the former annuity adjusted by cost-of-living increases and a supplemental annuity computed under § 19.10 on the basis of service credit and average salary earned during the recall period, irrespective of the number of years of service credit previously earned.
(3) If the recall service lasts five years or more, the annuitant will be entitled to recomputation of the annuity as if there had been no previous retirement, or elect benefits under paragraph (a) (1) or (2) of this section.
(4) An annuitant may receive credit in any computation under paragraph (a) (2) or (3) of this section for any Federal service performed subsequent to the separation upon which the original annuity was computed provided a special contribution is made for such service under section 805 of the Act.
(5) An annuitant entitled to a supplemental annuity under paragraph (a)(3) of this section or a recomputated annuity under paragraph (a)(4) of this section is obligated, in the absence of a court order or spousal agreement to the contrary, to have those annuities reduced to provide the benefits described in § 19.8 to any spouse or former spouse to whom married during any portion of the recall service. An annuitant must accept a reduction of 10 percent of his/her supplemental annuity in order to provide a supplemental survivor annuity to a spouse or former spouse. The maximum supplemental survivor annuity equals 55 percent of the supplemental annuity. If, upon reversion to retired status, an annuitant has a former spouse entitled to a pro rata share or some other share of the supplemental survivor annuity, but no spouse, the appropriate share of the supplemental annuity shall be reduced by 10 percent to provide such former spouse a share of the maximum supplemental survivor annuity.
(b) Survivor benefit for death during recall service. (1) If an annuitant entitled to a reduced annuity under § 19.10-2 dies in service after being recalled and is survived by a spouse or former spouse entitled to a survivor annuity based on the service of such annuitant, such survivor annuity shall be computed as if the recall service had otherwise terminated on the day of death and the annuity of the deceased had been resumed in accordance with paragraph (a) of this section. If such death occurs after the annuitant had completed sufficient recall service to attain eligibility for a supplemental annuity, a surviving spouse or surviving former spouse who was married to the participant at any time during a period of recall service shall be entitled to elect, in addition to any other benefits and in lieu of a refund of retirement contributions made during the recall service, a supplemental survivor annuity computed and paid under § 19.10-6a(5) as if the recall service had otherwise terminated. If the annuitant had completed sufficient recall service to attain eligibility to have his/her annuity determined anew, a surviving spouse or such a surviving former spouse may elect, in lieu of any other survivor benefit under § 19.11, to have the rights of the annuitant redetermined and to receive a survivor annuity computed under § 19.11-2 or § 19.11-3 on the basis of the total service of the annuitant. In the event such an annuitant is survived both by a spouse and such a former spouse, the former spouse will be entitled to a pro rata share of any refund or supplemental survivor benefit under this section computed on the basis of total service during the recall period and months of marriage during such period. If the surviving spouse and surviving former spouse elect different benefits under this paragraph, the former spouse will receive the pro rata share of the benefit he/she elects and the spouse will receive the reciprocal share of the benefit he/she elects.
(2) In the event an annuitant dies during recall service and is survived by a former spouse to whom not married during any period of the recall service, such former spouse will not be entitled to any benefits based on the recall service.
§ 19.11 Survivor benefits.
§ 19.11-1 Kinds of survivor benefits.
If a participant or former participant dies in active service or after retirement, regular survivor annuities are payable under terms of this section to an eligible surviving spouse, former spouse or child. Also, if all rights to annuity and survivor annuity terminate prior to exhaustion of the participant’s lump-sum credit, a lump-sum payment is made pursuant to § 19.13. In addition to the above, an additional survivor annuity, and a supplemental survivor annuity may be payable to an eligible survivor under §§ 19.10-5 and 19.10-6, respectively. If any participant or former participant makes an election, files a spousal agreement or becomes subject to a court order to provide a regular survivor annuity for a spouse or former spouse and does not subsequently become entitled to leave a survivor annuity under these regulations (because of separation from the Service and withdrawal of contributions, death after separation but before commencement of a deferred annuity, or for any other reason), none will be paid and such election, spousal agreement or court order to provide such survivor annuity will have no force or effect.
§ 19.11-2 Regular survivor annuity for a former spouse.
(a) Divorce prior to retirement. If a participant or former participant is divorced prior to commencement of annuity, any former spouse shall be entitled to a pro rata share of such a principal’s maximum regular survivor annuity (based on service performed prior to the first date the principal becomes eligible for an annuity following the divorce) unless a different amount is elected in a spousal agreement filed with PER/ER/RET within 12 months after the divorce becomes final or at the time of the retirement, whichever occurs first, or unless a different amount is specified by a court prior to the death of the principal. The principal’s annuity shall be reduced at the commencing date under § 19.10-2 in order to provide the survivor annuity committed to the former spouse.
(b) Divorce after retirement. In the event an annuitant is divorced after retirement (commencement of annuity), the maximum survivor annuity that may be provided for that former spouse is limited to the amount provided for that person at the time of retirement. Within that limit, the former spouse is entitled to a pro rata share of the participant’s maximum survivor benefit (based on service performed prior to the divorce) unless a different amount was elected in a spousal agreement filed with PER/ER/RET at the time of retirement, or in the case of retirement before February 15, 1981, filed with PER/ER/RET within 12 months after the divorce becomes final, or unless a different amount is specified by a court prior to the death of the principal. For this purpose, a joint election filed with PER/ER/RET at the time of retirement is considered a spousal agreement. If the survivor annuity for the former spouse is reduced at the time of the divorce (because the pro rata share or the amount specified in a spousal agreement or court order is less than the amount elected at retirement), the principal’s annuity shall be recomputed and paid, effective on the date the survivor benefit is reduced, as if the lower amount had been elected at the outset of retirement.
(c) Death or remarriage of former spouse and transfer of survivor benefit to a spouse. Remarriage below age 60 or death of a former spouse while a principal is alive will disqualify the former spouse for benefits under this section. In the event of such a remarriage or death of a former spouse, the portion of a principal’s survivor annuity committed to that person will become available for transfer to any spouse. If such a remarriage or death of the former spouse occurs after the principal’s annuity commences, any reduction in the principal’s annuity for that former spouse will be discontinued effective at the beginning of the first month following the remarriage or death unless the annuitant elects to provide or to increase a survivor benefit for a spouse. Such an election may be made within one year after the annuitant receives notice of the remarriage or death of his/her former spouse. The Department (PER/ER/RET) and the annuitant shall each notify the other promptly whenever either receives independent notice of such a remarriage or death. If an election to transfer survivor benefits to a spouse is not made by the annuitant, his/her annuity will be recomputed and paid as if there had been no reduction for the discontinued survivor benefit. If an annuity is so recomputed and an election is subsequently made to designate as beneficiary a spouse to whom married for at least one year at the time the election is made, the principal’s annuity shall be restored retroactively to its former, lower rate and then adjusted by cost-of-living increases that have occured since the date of the first recomputation. If an election is made for a spouse when the marriage has not yet lasted a year, the procedures in § 19.10-4 shall be followed.
(d) Amount of survivor annuity. The amount of a regular survivor annuity is determined under § 19.11-3(c).
(e) Special rules for election of survivor annuity for a person who is a former spouse on February 15, 1981. (1) Any participant, or former participant eligible for a deferred annuity which has not yet commenced, who, on February 15, 1981 has a former spouse, may at any time prior to commencement of annuity, elect, with the consent of any spouse to whom married at the time of the election, to receive a reduced annuity and provide a regular survivor annuity for such former spouse. Such survivor annuity shall be limited by § 19.10-2(b). An election under this paragraph for a former spouse will reduce the amount of any regular survivor annuity that may subsequently be provided for any spouse or other former spouse.
(2) Any former participant in receipt of an annuity who has a former spouse on February 15, 1981 and who has not committed his/her entire annuity as a base for a regular survivor annuity for a spouse or any other former spouse, may, prior to December 31, 1982, designate any portion of the uncommitted base as the base for a regular survivor annuity for such former spouse.
(3) The annuity of a former participant making an election under this paragraph shall be reduced under § 19.10-2(a) effective February 15, 1981, or from its commencing date if later.
(4) An election under this paragraph shall be made by filing a spousal agreement with PER/ER/RET under § 19.7. A spousal agreement to provide a regular survivor annuity under this paragraph for a former spouse may be revoked or amended after its acceptance by PER/ER/RET as in accordance with the Act and these regulations, only by agreement of the parties up to the last day allowed by this paragraph for filing such an agreement. Thereafter, it is irrevocable. If a participant dies in service after having filed a valid election under this section, a survivor annuity will be paid to an eligible former suriving spouse in accordance with the terms of the election.
§ 19.11-3 Regular survivor annuity for a spouse.
(a) In the absence of a joint election or a spousal agreement to the contrary, a participant or former participant who is separated from active service on or after February 15, 1981 who is married at the commencement of his/her annuity shall provide a regular survivor annuity for a spouse under § 19.10-2 equal to the maximum amount that remains available under limitations stated in paragraph (b) of that section after allowing for any commitment of a regular survivor annuity for a former spouse who has not remarried prior to age 60 and who is alive on the date the former participant becomes eligible for an annuity.
(b) A regular survivor annuity is also payable to a surviving spouse for whom a principal elected an annuity under § 19.10-3, § 19.10-4, or § 19.11-2(c) following a marriage after comencement of his/her annuity.
(c) The amount of a regular survivor annuity equals 55 percent of the base designated for the benefit at the time the principal’s annuity commenced, adjusted by the total percentage of cost-of-living increases the principal was receiving at death.
(d) A survivor annuity is payable to a surviving spouse only if that person was married to the principal at the time of his/her death or if the spouse became a former spouse under the definition in § 19.2(k).
§ 19.11-4 Procedure in event a spouse or former spouse is missing.
If a participant or former participant has a spouse or former spouse whose whereabouts are unknown, such participant may elect to reduce or eliminate the share of a regular survivor annuity provided for that person under § 19.11-2 or § 19.11-3 by filing an affidavit with PER/ER/RET stating that his/her spouse or former spouse is missing and giving full name, last known address, date last heard from, circumstances of the disappearance and a description of the effort that has been made to locate the individual. Thereafter, the participant shall take such additional steps to locate the missing person as may be directed by PER/ER/RET. That Office shall also attempt to locate the missing person by sending a letter to the individual’s last known address given in the Department’s files, to the address given on the affidavit, and, if a Social Security number is known, to the Social Security Administration for forwarding. The election and affidavit may be filed at any time before commencement of annuity. It must remain on file with PER/ER/RET for at least one year before being given irrevocable effect by the Department. If the annuity to the former participant becomes effective prior to the expiration of this one year period, the annuity shall be computed and paid without reference to the election filed under this section. Following this one-year period, or at the commencement of annuity, if later, if the missing person has not been located, the affidavit may be reaffirmed by the participant, after which an election by the participant to reduce or eliminate the share of regular survivor annuity for the missing person shall be given irrevocable effect by the Department. If the annuity to the former participant has commenced, it shall be recomputed and paid retroactively to give effect to any election made under this section.
§ 19.11-5 Commencement, termination and adjustment of annuities.
(a) An annuity payable from the Fund to a surviving spouse or former spouse begins on the day after the participant or annuitant dies and stops on the last day of the month before the survivor’s (1) marriage before age 60, or (2) death. If a survivor annuity is terminated because of remarriage, the annuity is restored at the same rate effective on the date such remarriage is terminated, provided any lump-sum paid upon termination of the annuity is returned to the Fund. The termination of a surviving spouse annuity due to remarriage does not apply to a survivor annuitant who is a surviving spouse of a participant who died in service or retired before October 1, 1976, unless elected following a marriage after retirement under circumstances described in § 19.10-3 or § 19.10-4.
(b) A surviving spouse or former spouse shall not become entitled to a survivor annuity or to the restoration of a survivor annuity payable from the Fund unless the survivor elects to receive it instead of any other survivor annuity to which entitled under this or any other retirement system for Government employees. (For this purpose, neither the Social Security system nor the military retirement system is considered a retirement system for Government employees.) This restriction does not apply to a survivor annuitant who is a surviving spouse of a participant who died in service or retired before October 1, 1976, unless the survivor annuity was elected under circumstances described in § 19.10-3 or § 19.10-4.
(c) A child’s annuity begins on the day after the participant dies, or if a child is not then qualified, on the first day of the month in which the child becomes eligible. A child’s annuity shall terminate on the last day of the month which precedes the month in which eligibility ceases.
(d) Regular and supplemental survivor annuities to a spouse or former spouse of an annuitant described in §§ 19.11-2, 19.11-3 and 19.10-6(b) are increased from their effective date by the cumulative percentage of cost-of-living increases the annuitant was receiving under section 826 of the Act at death. All annuities payable to survivors on the date a cost-of-living adjustment becomes effective are increased by that percentage except (1) the first increase to a surviving spouse of a participant who dies in service shall be pro rated and (2) additional survivor annuities under § 19.10-5 when the spousal agreement authorizing the annuity makes no provision for cost-of-living increases.
(e) The annuity of survivors becomes effective as specified in this section but is not paid until the survivor submits Form JF-38, Application for Death Benefits, supported by such proof as may be required, for example, death, marriage, and/or divorce certificates. In the event that such is not submitted during an otherwise eligible beneficiary’s lifetime, no annuity is due or payable to the beneficiary’s estate.
§ 19.11-6 Death during active duty.
(a) Annuity for surviving former spouse. In the event a participant dies before separation from the Service and leaves a former spouse, such former spouse is entitled to a regular survivor annuity under § 19.11-2 computed as if the participant had retired on the date of death unless a court order or spousal agreement is on file in the Department waiving such entitlement or providing for some other computation, or unless the former spouse had been found missing and an election filed under the procedures of § 19.11-4 waiving a survivor benefit for that person. Any assumed service authorized to be used under paragraph (b) of this section in computing the annuity for a surviving spouse may not be counted as “years of marriage” when determining whether the previous spouse qualifies as a “former spouse” under the definition in § 19.2(k) or when computing the pro rata share under § 19.2(s). A former spouse is entitled to an additional survivor annuity under § 19.10-5 provided death occurs on or after the effective date of a spousal agreement providing for the additional annuity.
(b) Annuity for surviving spouse. If a participant who has at least 19 months of civilian service credit toward retirement under the System, excluding extra service credited for unhealthful post duty in accordance with section 816 of the Act, dies before separation from the Service, and is survived by a spouse as defined in § 19.2(v) such survivor shall be entitled to an annuity equal to 55 percent of the annuity computed in accordance with § 19.10-1 less any annuity payable to a former spouse under paragraph a. If the participant had less than three years of creditable civilian service at the time of death, the survivor annuity is computed on the basis of the average salary for the entire period of such service. If, at time of death, the participant had less than 20 years of creditable service, the annuity shall be computed on the assumption that the participant has had 20 years of service, but such additional service credit shall in no case exceed the difference between the participant’s age on the date of death and age 65. A spouse is entitled to an additional survivor annuity under § 19.10-5 provided death occurs on or after the effective date of a spousal agreement providing for the additional annuity.
(c) Annuity for a child or children. If a participant described in paragraph (b) of this section is survived by a child or children, each surviving child is entitled to an annuity as described in § 19.11-7.
(d) Annuity changes. Annuities based on a death in service are subject to the provisions of § 19.11-5 governing commencement, adjustment, termination and resumption of annuities.
§ 19.11-7 Annuity payable to surviving child or children.
(a) If a participant who has at least 18 months of civilian service credit under the System dies in service, or if an annuitant who was a former participant dies, annuities are payable to a surviving child or children, as defined in § 19.2(e) as follows:
(1) When survived by spouse and child or children. If a principal is survived by a wife or husband and by a child or children, in addition to any other annuity, there shall be paid to or on behalf of each child an annuity equal to the smallest of:
(i) $900
(ii) $2,700 divided by the number of children – adjusted under paragraph (b).
(2) When survived by a child or children but no spouse. If the principal is not survived by a wife or husband, but by a child or children, each surviving child shall be paid an annuity equal to the smallest of:
(i) $1,080
(ii) $3,240 divided by the number of children – adjusted under paragraph (b) of this section.
(b) Adjusted rates. In order to reflect cost-of-living increases, the amounts referred to in paragraphs (a)(1) and (2) are increased from the commencing date of the annuity to each child by the cumulative percentage of all cost-of-living increases that have occurred under 5 U.S.C. 8340 since October 31, 1969.
(c) Recomputation of annuity for child or children. If a surviving wife or husband dies or the annuity of a child is terminated, the annuities of any remaining children shall be recomputed and paid as though such spouse or child had not survived the participant. If the annuity to a surviving child who has not been receiving an annuity is initiated or resumed, the annuities of any other children shall be recomputed and paid from that date as though the annuities to all currently eligible children in the family were then being initiated.
§ 19.11-8 Required elections between survivor benefits.
(a) Bar against concurrent payment under this Act and Workers’ Compensation Act. Except as stated below, survivor annuities and survivors’ compensation for work injuries under 5 U.S.C. 8102 are not payable concurrently if both are based on the death of the same employee. A survivor entitled to both must elect which of the two benefits he/she prefers. Should all eligible survivors of a deceased employee elect to receive the compensation benefit rather than the survivor annuity, their rights to the latter are terminated and, if the lump-sum credit has not been exhausted, a lump-sum payment will become due under § 19.13. The one exception to this rule occurs when a widow or widower is being paid the balance of a scheduled compensation award under 5 U.S.C. 8107 due the deceased employee. If so, the widow or widower may receive the survivor annuity and compensation award concurrently.
(b) Election between survivor annuity and social security benefits. Pursuant to 42 U.S.C. 417 (a) and (e), survivors who are eligible for annuity which is based in part on military service performed by a principal between September 16, 1940, and December 31, 1956, and also for survivor benefits under the Social Security system, may elect to have the military service credited toward the Social Security benefit. In practice, the survivors should apply for both benefits, ask the Department and the Social Security Administration for statements showing the amount of each benefit, and then make their election of where to credit the military service. If Social Security benefits are elected, the rights of all survivors to a foreign service annuity are terminated.
§ 19.12 Employment in a Government agency.
An annuitant who is reemployed by a Federal Government agency may not receive a combination of salary and annuity which exceeds his/her Foreign Service salary at the time of retirement. Refer to § 19.9-4.
§ 19.13 Lump-sum payment.
§ 19.13-1 Lump-sum credit.
“Lump-sum credit” is the compulsory and special contributions to a participant’s or former participant’s credit in the Fund for his/her first 35 years of service plus interest thereon computed from the midpoint of each service period and compounded at four percent annually to the date of separation or December 31, 1976, whichever is earlier, and after such date, for a participant who separates from the Service after completing at least one year of civilian service and before completing 5 years of such service, at the rate of three percent annually to the date of separation. Interest shall not be paid for a fractional part of a month in the total service or on compulsory and special contributions from the annuitant for recall service or other service performed after the date of separation which forms the basis for annuity.
A former spouse of a participant or annuitant is entitled to a prorata share of 50 percent of any lump-sum payment authorized to be paid to a former participant under this section who separated from the Service on or after February 15, 1981, unless otherwise directed in a court order or a spousal agreement.
§ 19.13-3 Payment after death of principal.
If a participant or former participant dies and no claim for annuity is payable, the lump-sum credit is paid to surviving beneficiaries.
§ 19.14 Waiver of annuity.
An individual entitled to be paid an annuity may, for personal reasons, decline to accept all or any part of the annuity. However, a principal may not waive the portion of his/her annuity authorized to be paid to a former spouse under § 19.7 or § 19.9 or to a beneficiary under § 19.6. An annuity waiver shall be in writing and sent to the Department (PER/ER/RET). A waiver may be revoked in writing at any time. Payment of the annuity waived may not be made for the period during which the waiver was in effect.
PART 20 – BENEFITS FOR CERTAIN FORMER SPOUSES
§ 20.1 Definitions.
As used in this part, unless otherwise specified, the following have the meaning indicated:
COLA means cost-of-living adjustment in annuity.
Creditable service or service means employment or other periods that are counted under sections 816, 817, or 854 in determining retirement benefits.
Disability annuitant means a participant in FSRDS or FSPS entitled to a disability annuity under section 808 of the Act or subchapter V, chapter 84, title 5 U.S.C., and a disability annuity means a Foreign Service annuity computed under those sections.
FSRDS means the Foreign Service Retirement and Disability System established by subchapter I, chapter 8, of the Act.
FSPS means the Foreign Service Pension System established by subchapter II, chapter 8, of the Act.
Former spouse means a former wife or husband of a participant or former participant who was married to such participant for not less than 10 years during service of the participant which is creditable under chapter 8 of the Act with at least 5 years occurring while the employee was a member of the Foreign Service and who retired from the Foreign Service Retirement System.
Full annuity equals the annuity the former participant would be eligible to receive except for deductions made to provide survivor benefits or because of payment of a portion of the annuity to others.
Participant means a person who contributes to the Fund identified in § 20.2. Such person may participate in either FSRDS or FSPS.
Principal means a participant or former participant whose service forms the basis for a benefit for a former spouse under this part.
Pro rata share, in the case of a former spouse of a participant or former participant, means the percentage obtained by dividing the number of months during which the former spouse was married to the participant during the creditable service of the participant by the total number of months of such creditable service. In the total period, 30 days constitutes a month and any period of less than 30 days is not counted. When making this calculation for a former spouse married to a participant during a period the participant earned extra service credit under section 817 of the Act, the number of months of such extra service credit earned during that period of the marriage shall be added to the total number of months of the marriage.
§ 20.2 Funding.
Benefits under this part are paid from the Fund maintained by the Secretary of the Treasury pursuant to section 802 of the Act but are not authorized to be paid except to the extent provided therefor. Appropriations for such Fund are authorized by section 821(a) of the Act.
§ 20.3 Qualifications.
To be eligible for retirement or survivor benefits under this part, a former spouse must –
(a) Have been a former spouse on February 14, 1981;
(b) After becoming a former spouse, not have remarried before attaining age 55;
(c) In the case of any retirement benefit under § 20.5; elect this benefit instead of any survivor annuity for which the former spouse may simultaneously be eligible under this or another retirement system for Government employees; and
(d) Submit an application to the Department of State by June 22, 1990, in accordance with § 20.9 unless that date is extended as authorized by that section. The deadline for submission of an application for survivor benefits under § 20.5 will be deemed to have been met if the former spouse submits an application for retirement benefits within the deadline.
§ 20.4 Retirement benefits.
(a) Type of benefits. (1) A former spouse who meets the qualification requirements of § 20.3 is entitled to a share of any Foreign Service annuity (other than a disability annuity) or any supplemental annuity computed under section 806(a), 823 or 824 of the Act to which the principal is entitled under FSRDS and to any Foreign Service annuity (other than a disability annuity) or annuity supplement computed under section 824 or 855 of the Act of 5 U.S.C. 8415 to which the principal is entitled under FSPS.
(2) A former spouse of a disability annuitant is entitled to a share of benefits to which the annuitant would qualify under paragraph (a) of this section, he or she not been disabled based on the actual age and service of the annuitant.
(b) Share. The share of a participant’s benefits to which a qualified former spouse is entitled is –
(1) 50 percent of the benefits described in § 20.4(a) if the former spouse was married to the participant throughout the latter’s creditable service; or
(2) A pro rata share of 50 percent of such benefits if the former spouse was not married to the participant throughout such creditable service.
(c) Reduction of benefits. If retirement benefits of a principal are reduced because of reemployment, attainment of eligibility for Social Security benefits or for any other reason, the amount of the share payable to a former spouse is correspondingly reduced during the period of the reduction.
(d) Commencement, termination and suspension. (1) Entitlement to retirement benefits under this section (except for a former spouse of a disability annuitant) shall commence on the latter of –
(i) The day the principal becomes entitled to benefits described in § 20.4(a); or
(ii) December 22, 1987.
(2) Entitlement to retirement benefits under this section for a former spouse of a disability annuitant shall commence on the latter of –
(i) The date the principal would qualify for benefits (other than a disability annuity) described in § 20.4(a) on the basis of the principal’s actual age and service;
(ii) The date the disability annuity begins; or
(iii) December 22, 1987.
(3) Entitlement to retirement benefits under this section shall terminate or be suspended on the earlier of –
(i) Last day of the month before the former spouse dies or remarries before attaining age 55;
(ii) Date benefits of the principal terminate or are suspended because of death, recall, reemployment, recovery from disability or for any other reason.
(4) Entitlement to benefits under this section shall be resumed for a former spouse, following their suspension, or the date they are resumed for the principal.
§ 20.5 Survivor benefits.
(a) Type of benefits. A former spouse who meets the eligibility requirements of § 20.3 is entitled to survivor benefits equal to one of the following; whichever is applicable:
(1) 55 percent of the full annuity to which the principal was entitled on the commencement or recomputation date of the annuity in the case of a principal who dies while in receipt of a Foreign Service annuity computed under section 806, 808, 823, 824, or 855 of the Act of 5 U.S.C. 8415;
(2) 55 percent of the annuity to which the principal was entitled at death in the case of a principal who dies while in receipt of a Foreign Service annuity computed under 5 U.S.C. 8452;
(3) 55 percent of the full annuity to which the principal would have been entitled if he or she retired (or returned to retirement status) on the date of death computed – depending on the provision that would be used to compute an annuity for a surviving spouse of the principal – under section 806(a), 823, 824, or 855(b) of the Act of 5 U.S.C. 8415 and using the actual service of the principal, in the case of a principal who dies while in active service, including service on recall or reemployment while annuity is suspended or reduced; or,
(4) 55 percent of the full annuity computed under 5 U.S.C. 8413(b) that the principal could have elected to receive commencing on the date of death or, if later, commencing on the date the principal would have attained the minimum retirement age described in 5 U.S.C. 8412(h), in the case of a principal while entitled to a deferred annuity under 5 U.S.C. 8413(b), but before commencement of that annuity. A survivor annuity under this paragraph may not commence before the date the principal would have attained the minimum retirement age.
(b) Effect of election of alternate form annuity. If a principal elects an alternate form annuity under section 829 of the Act or 5 U.S.C. 8420a, survivor benefits for a former spouse under this section shall, nevertheless, be based on what the principal’s annuity would have been had the principal not withdrawn retirement contributions in a lump sum.
(c) Reduction because of receipt of other survivor benefits. If a former spouse is in receipt of a survivor annuity based on an election by the principal under section 806(f) or 2109 of the Act, the survivor benefits for the former spouse under this section shall be reduced on the effective date by the amount of such elected survivor annuity.
(d) Commencement and Termination. Entitlement to survivor benefits under this section –
(1) Shall commence on the latter of –
(i) The date the principal dies;
(ii) December 22, 1987; and
(2) Shall terminate on the last day of the month before the former spouse dies or remarries before attaining age 55.
§ 20.6 COLA.
(a) Retirement benefits. A retirement annuity payable to a former spouse under § 20.4 is adjusted for cost-of-living increases under section 826 or 858 of the Act in the same manner as the annuity of the principal. The first such increase for a former spouse shall be prorated under the applicable section in the same way the first increase for the principal is adjusted, irrespective of whether the annuity to the former spouse commences on the same date as the annuity to the principal. If the benefit of a former spouse is based in part on an annuity supplement payable to a principal under 5 U.S.C. 8421 which is not adjusted by COLA, then that portion of the benefit payable to a former spouse is not adjusted by COLA.
(b) Survivor benefits. (1) Survivor annuities payable to a former spouse are adjusted for COLA under section 826 or 858 of the Act in the same manner as annuities are or would be adjusted for other survivors of the principal.
(2) A survivor annuity payable to a former spouse under § 20.5-1(A) shall be increased from its commencing date pursuant to paragraph (c)(2) of section 826 of the Act or 8462 of Title 5, U.S. Code, by all COLA received by the principal at death, irrespective of the date of death and in instances where death occurred prior to December 22, 1987, by all COLA that would have been paid to a survivor annuitant from the date of death until December 22, 1987.
(3) The first increase to which a former spouse becomes entitled whose annuity is computed under § 20.5(a)(2) shall be prorated pursuant to 5 U.S.C. 8462(c)(4).
(4) The first increase to which a former spouse becomes entitled whose annuity is computed under § 20.5(a)(3) or
(5) Shall be prorated pursuant to paragraph (c)(1) of section 826 of the Act or 8462 or title 5, U.S. Code.
§ 20.7 Waiver.
A former spouse entitled to an annuity under this part may decide to decline all or any part of the annuity for personal reasons. An annuity waiver shall be in writing and sent to the Retirement Division (PER/ER/RET), Department of State, Washington, DC 20520. A waiver may be revoked in writing at any time. Payment of the annuity waived prior to receipt by the Retirement Division of the renovation may not be made.
§ 20.8 Effect on other benefits.
Payment to a former spouse under this part shall not impair, reduce, or otherwise affect benefits paid under the Act to the principal or other persons.
§ 20.9 Application procedure.
(a) Submission of application. To be eligible for retirement or survivor benefits under this part, a former spouse must submit a properly executed and completed application to the Department of State by June 22, 1990 or, if an exception is made for compelling cause to this deadline, within 60 days following the date of the letter from the Department transmitting the application to the former spouse. The application must be delivered or mailed to the Retirement Division (PER/ER/RET), Room 1251, Department of State, Washington, DC 20520.
(b) Request for application. The Department of State has attempted to mail applications to all former spouses of whom it is aware that it believes may be eligible for benefits under this part. Any eligible former spouse who does not have an application at the time this part is published in the
It shall also give the dates of marriage and divorce or annulment that establish eligibility and fully identify the Foreign Service employee or former employee in question and state the agency of current or last employment.
(c) Payment of benefits delayed. Payment of benefits cannot be made to a former spouse until the application for benefits is approved by the Retirement Division of the Department. Upon such approval, benefits will be paid to an eligible former spouse retroactively, if necessary, back to the commencing date determined under this part.
PART 21 – INDEMNIFICATION OF EMPLOYEES
§ 21.1 Policy.
(a) The Department of State may indemnify an employee for any verdict, judgment, or other monetary award which is rendered against such employee, provided that the conduct giving rise to the verdict, judgment, or award was taken within the scope of employment and that such indemnification is in the interest of the United States, as determined as a matter of discretion by the Under Secretary for Management or his or her designee.
(b) The Department of State may settle or compromise a personal damages claim against an employee by the payment of available funds at any time, provided the alleged conduct giving rise to the personal damages claim was taken within the scope of employment and that such settlement or compromise is in the interest of the United States, as determined as a matter of discretion by the Under Secretary for Management or his or her designee.
(c) The Director General of the Foreign Service and Director of Personnel (“Director General”) shall be the designee of the Under Secretary for Management with respect to determinations under paragraphs (a) and (b) of this section in cases which involve:
(1) Foreign courts or foreign administrative bodies and
(2) Requests of less than five thousand dollars.
(d) Absent exceptional circumstances as determined by the Under Secretary for Management or his or her designee, the Department will not entertain a request either to agree to indemnify or to settle a personal damages claim before entry of an adverse verdict, judgment, or award.
(e) When an employee in the United States becomes aware that an action has been filed against the employee in his or her personal capacity as a result of conduct taken within the scope of his or her employment, the employee shall immediately notify the Department through the Executive Director of the Office of the Legal Adviser that such an action is pending. Employees overseas shall notify their Administrative Counselor who shall then notify the Assistant Legal Adviser for Special Functional Problems. Employees may be authorized to receive legal representation by the Department of Justice in accordance with 28 CFR 50.15.
(f) The employee may thereafter request indemnification to satisfy a verdict, judgment, or award entered against the employee. The employee shall submit a written request, with appropriate documentation including copies of the verdict, judgment, award, or settlement proposal if on appeal, to the Legal Adviser. Except as provided in paragraph (g) of this section, the Legal Adviser and the Director General shall then, in coordination with the Bureau of Finance and Management Policy, forward the request with their recommendation to the Under Secretary for Management for decision. The Legal Adviser may seek the views of the Department of Justice, as appropriate, in preparing this recommendation.
(g) Cases in which the Director General is the designee under paragraph (c) of this section may be forwarded by the Assistant Legal Adviser for Special Functional Problems, along with the views of the employee and the bureau or post as appropriate, to the Director General for decision.
(h) Personal services contractors of the Department are considered employees for purposes of the policy set forth in this part.
(i) Any payment under this part either to indemnify a Department of State employee or to settle a personal damages claim shall be contingent upon the availability of appropriated funds.
(j) In addition to the indemnification provisions contained in the regulations in this part, the Department will also follow any specific policies or regulations adopted with respect to damages awarded against Department health care personnel for malpractice claims within the scope of 22 U.S.C. 2702.
SUBCHAPTER C – FEES AND FUNDS
PART 22 – SCHEDULE OF FEES FOR CONSULAR SERVICES – DEPARTMENT OF STATE AND FOREIGN SERVICE
§ 22.1 Schedule of fees.
The following table sets forth the fees for the following categories listed on the U.S. Department of State’s Schedule of Fees for Consular Services:
Schedule of Fees for Consular Services
| Item No. | Fee |
|---|---|
| 1. Passport Book or Card Execution: Required for first-time applicants and others who must apply in person | $35 |
| 2. Passport Book Application Services for: | |
| (a) Applicants age 16 or over (including renewals) | $50 |
| (b) Applicants under age 16 | $20 |
| (c) [Reserved] | |
| (d) Passport book replacement for name change if submitted within one year of passport issuance | NO FEE. |
| (e) Passport book replacement for passport book limited in validity if submitted within one year of passport issuance. (Passport books limited in validity because of multiple losses, thefts, damage, or mutilations cannot be replaced) | NO FEE. |
| (f) Passport book replacement for data correction (name, date of birth, place of birth, sex printed erroneously) if submitted within one year of passport issuance | NO FEE. |
| (g) Passport book security surcharge (enhanced border security fee) | $80 |
| 3. Expedited service: Passport processing within the expedited processing period published on the Department’s website (see 22 CFR 51.56(b)) and/or in-person service at a U.S. Passport Agency (not applicable abroad) | $60. |
| 4. Exemptions: The following applicants are exempted from all passport fees listed in Item 2 above: | |
| (a) Officers or employees of the United States and their immediate family members (22 U.S.C. 214) and Peace Corps Volunteers and Leaders (22 U.S.C. 2504(h)) proceeding abroad or returning to the United States in the discharge of their official duties | NO FEE. |
| (b) U.S. citizen seamen who require a passport in connection with their duties aboard an American flag vessel (22 U.S.C. 214(a)) | NO FEE. |
| (c) Widows, children, parents, or siblings of deceased members of the Armed Forces proceeding abroad to visit the graves of such members (22 U.S.C. 214(a)) | NO FEE. |
| (d) Employees of the American National Red Cross proceeding abroad as members of the Armed Forces of the United States (10 U.S.C. 2602(c)) | NO FEE. |
| 5. Travel Letter: Provided in rare, life-or-death situations as an emergency accommodation to a U.S. citizen returning to the United States when the consular officer is unable to issue a passport book | NO FEE unless consular time charges (Item 75) apply. |
| 6. File search and verification of U.S. citizenship: When applicant has not presented evidence of citizenship and previous records must be searched (except for an applicant abroad whose passport was stolen or lost abroad or when one of the exemptions is applicable) | $150. |
| 7. Application for Consular Report of Birth Abroad of a Citizen of the United States | $100. |
| 8. Administrative Processing of Request for Certificate of Loss of Nationality | 2,350 |
| 9. Passport Card Application Services for: | |
| (a) Applicants age 16 or over (including renewals) [Adult Passport Card] | $30. |
| (b) Applicants under age 16 [Minor Passport Card] | $15. |
| (c) Passport card replacement for name change if submitted within one year of passport issuance | NO FEE. |
| (d) Passport card replacement for data correction (name, date of birth, place of birth, sex printed erroneously) if submitted within one year of passport issuance | NO FEE. |
| (Item 10 vacant.) | |
| 11. Arrest and prison visits | NO FEE. |
| 12. Assistance regarding the welfare and whereabouts of a U.S. Citizen, including child custody inquiries and processing of repatriation and emergency dietary assistance loans | NO FEE. |
| (Item 13 vacant.) | |
| 14. Assistance to next-of-kin: | |
| (a) After the death of a U.S. citizen abroad (providing assistance in disposition of remains, making arrangements for shipping remains, issuing Consular Mortuary Certificate, and providing up to 20 original Consular Reports of Death) | NO FEE. |
| (b) Making arrangements for a deceased non-U.S. citizen family member (providing assistance in shipping or other disposition of remains of a non-U.S. Citizen) | $200 plus expenses. |
| 15. Issuance of Consular Mortuary Certificate on behalf of a non-U.S. Citizen | $60. |
| 16. Acting as a provisional conservator of estates of U.S. Citizens: | |
| (a) Taking possession of personal effects; making an inventory under an official seal (unless significant time and/or expenses incurred) | NO FEE. |
| (b) Overseeing the appraisal, sale, and final disposition of the estate, including disbursing funds, forwarding securities, etc. (unless significant time and/or expenses incurred) | NO FEE. |
| (c) For services listed in Item 16(a) or (b) when significant time and/or expenses are incurred | Consular time (Item 75) plus expenses. |
| (Items 17 through 19 vacant.) | |
| 20. Filing Nonimmigrant Visa Petition Based on Blanket L Petition (collected for USCIS and subject to change) | For fee amount, see 8 CFR 103.7(b)(1). |
| (a) Petition for a nonimmigrant worker (Form I-129) | For fee amount, see 8 CFR 103.7(b)(1). |
| (b) Nonimmigrant petition based on blanket L petition | For fee amount, see 8 CFR 103.7(b)(1). |
| 21. Nonimmigrant Visa Application and Border Crossing Card Processing Fees (per person): | |
| (a) Non-petition-based nonimmigrant visa (except E category) | $160 |
| (b) H, L, O, P, Q and R category nonimmigrant visa | $190 |
| (c) E category nonimmigrant visa | $205 |
| (d) K category (fiancé) nonimmigrant visa | $265 |
| (e) Border crossing card – age 15 and over (10 year validity) | $160 |
| (f) Border crossing card – under age 15; for Mexican citizens if parent or guardian has or is applying for a border crossing card (valid 10 years or until the applicant reaches age 15, whichever is sooner) | $15 |
| 22. EXEMPTIONS from Nonimmigrant Visa Application Processing Fee: | |
| (a) Applicants for A, G, C-3, NATO and diplomatic visas as defined in 22 CFR 41.26 | NO FEE. |
| (b) Applicants for J visas participating in official U.S. Government sponsored educational and cultural exchanges | NO FEE. |
| (c) Replacement machine-readable visa when the original visa was not properly affixed or needs to be reissued through no fault of the applicant | NO FEE. |
| (d) Applicants exempted by international agreement as determined by the Department, including members and staff of an observer mission to United Nations Headquarters recognized by the UN General Assembly, and their immediate families | NO FEE. |
| (e) Applicants traveling to provide charitable services as determined by the Department | NO FEE. |
| (f) U.S. government employees traveling on official business | NO FEE. |
| (g) A parent, sibling, spouse, or child of a U.S. government employee killed in the line of duty who is traveling to attend the employee’s funeral and/or burial; or a parent, sibling, spouse, son, or daughter of a U.S. government employee critically injured in the line of duty for visitation during emergency treatment and convalescence | NO FEE. |
| 23. Nonimmigrant Visa Issuance Fee, including Border-Crossing Cards (Reciprocity Fee) | RECIPROCAL. |
| 24. EXEMPTIONS from Nonimmigrant Visa Issuance Fee: | |
| (a) An official representative of a foreign government or an international or regional organization of which the U.S. is a member; members and staff of an observer mission to United Nations Headquarters recognized by the UN General Assembly; and applicants for diplomatic visas as defined under item 22(a); and their immediate families | NO FEE. |
| (b) An applicant transiting to and from the United Nations Headquarters | NO FEE. |
| (c) An applicant participating in a U.S. government sponsored program | NO FEE. |
| (d) An applicant traveling to provide charitable services as determined by the Department | NO FEE. |
| 25. Fraud Prevention and Detection Fee for Visa Applicant included in L Blanket Petition (principal applicant only) | $500. |
| (Items 26 through 30 vacant.) | |
| 31. Filing Immigrant Visa Petition (collected for USCIS and subject to change): | |
| (a) Petition to classify status of alien relative for issuance of immigrant Visa | For fee amount, see 8 CFR 103.7(b)(1). |
| (b) Petition to classify orphan as an immediate relative | For fee amount, see 8 CFR 103.7(b)(1). |
| 32. Immigrant Visa Application Processing Fee (per person) | |
| (a) Immediate relative and family preference applications | $325 |
| (b) Employment-based applications | $345 |
| (c) Other immigrant visa applications (including I-360 self-petitioners and special immigrant visa applicants) | $205 |
| (d) Certain Iraqi and Afghan special immigrant visa applications | NO FEE. |
| (e) Certain adoptee applicants for replacement Immigrant Visas as described in 22 CFR 42.71(b)(2) | NO FEE. |
| (f) Certain immigrant visa applicants previously refused pursuant to Proclamation 9645 or Proclamation 9983, as described in 22 CFR 42.71(b)(3) | NO FEE. |
| 33. Diversity Visa Lottery Fee (per person applying as a result of the lottery program) | $330. |
| 34. Affidavit of Support Review (only when reviewed domestically) | $120 |
| (a) Certain immigrant visa applicants previously refused solely pursuant to Proclamation 9645 or Proclamation 9983, as described in 22 CFR 42.71(b)(3) | NO FEE. |
| 35. Special Visa Services: | |
| (a) Determining Returning Resident Status | $180 |
| (b) Waiver of two year residency requirement | $120 |
| (c) Waiver of immigrant visa ineligibility (collected for USCIS and subject to change) | For fee amount, see 8 CFR 103.7(b)(1). |
| (d) Refugee or significant public benefit parole case processing | NO FEE. |
| (Items 36 through 40 vacant.) | |
| 41. Providing notarial service: | |
| (a) First service (seal) | $50. |
| (b) Each additional seal provided at the same time in connection with the same transaction | $50. |
| 42. Certification of a true copy or that no record of an official file can be located (by a post abroad): | |
| (a) First Copy | $50. |
| (b) Each additional copy provided at the same time | $50. |
| 43. Provision of documents, certified copies of documents, and other certifications by the Department of State (domestic): | |
| (a) Documents relating to births, marriages, and deaths of U.S. citizens abroad originally issued by a U.S. embassy or consulate | $50. |
| (b) Issuance of Replacement Report of Birth Abroad | $50. |
| (c) Certified copies of documents relating to births and deaths within the former Canal Zone of Panama from records maintained by the Canal Zone Government from 1904 to September 30, 1979 | $50. |
| (d) Certifying a copy of a document or extract from an official passport record | $50. |
| (e) Certifying that no record of an official file can be located | $50. |
| (f) Each additional copy provided at same time | $50. |
| 44. Authentications (by posts abroad): | |
| (a) Authenticating a foreign notary or other foreign official seal or signature | $50. |
| (b) Authenticating a U.S. Federal, State, or territorial seal | $50. |
| (c) Certifying to the official status of an officer of the U.S. Department of State or of a foreign diplomatic or consular officer accredited to or recognized by the U.S. Government | $50. |
| (d) Each authentication | $50. |
| 45. Exemptions: Notarial, certification, and authentication fees (Items 41-44) or passport file search fees (Item 6) will not be charged when the service is performed: | |
| (a) At the direct request of any Federal Government agency, any state or local government, the District of Columbia, or any of the territories or possessions of the United States (unless significant costs would be incurred) | NO FEE. |
| (b) With respect to documents to be presented by claimants, beneficiaries, or their witnesses in connection with obtaining Federal, state, or municipal benefits | NO FEE. |
| (c) For U.S. citizens outside the United States preparing ballots for any public election in the United States or any of its territories | NO FEE. |
| (d) At the direct request of a foreign government or an international agency of which the United States is a member if the documents are for official noncommercial use | NO FEE. |
| (e) At the direct request of a foreign government official when appropriate or as a reciprocal courtesy | NO FEE. |
| (f) At the request of direct-hire U.S. Government personnel, Peace Corps volunteers, or their dependents stationed or traveling officially in a foreign country | NO FEE. |
| (g) With respect to documents whose production is ordered by a court of competent jurisdiction | NO FEE. |
| (h) With respect to affidavits of support for immigrant visa applications | NO FEE. |
| (i) With respect to endorsing U.S. Savings Bonds Certificates | NO FEE. |
| 46. Authentications (by the Office of Authentications domestically): | |
| (a) Each basic authentication service | $20 |
| (Items 47 through 50 vacant.) | |
| 51. Processing letters rogatory and Foreign Sovereign Immunities Act (FSIA) judicial assistance cases, including providing seal and certificate for return of letters rogatory executed by foreign officials | $2,275. |
| 52. Taking depositions or executing commissions to take testimony: | |
| (a) Scheduling/arranging appointments for depositions, including depositions by video teleconference (per daily appointment) | $1,283. |
| (b) Attending or taking depositions, or executing commissions to take testimony (per hour or part thereof) | $309 per hour plus expenses. |
| (c) Swearing in witnesses for telephone depositions | Consular time (Item 75) plus expenses. |
| (d) Supervising telephone depositions (per hour or part thereof over the first hour) | Consular time (Item 75) plus expenses. |
| (e) Providing seal and certification of depositions | $415. |
| 53. Exemptions: Deposition or executing commissions to take testimony. Fees (Item 52) will not be charged when the service is performed: | |
| (a) At the direct request of any Federal Government agency, any state or local government, the District of Columbia, or any of the territories or possessions of the United States (unless significant time required and/or expenses would be incurred) | NO FEE. |
| (b) Executing commissions to take testimony in connection with foreign documents for use in criminal cases when the commission is accompanied by an order of Federal court on behalf of an indigent party | NO FEE. |
| (Items 54 through 60 vacant.) | |
| 61. Shipping and Seaman’s services: Including but not limited to recording a bill of sale of a vessel purchased abroad, renewal of a marine radio license, and issuance of certificate of American ownership | Consular time (Item 75) plus expenses. |
| (Items 62 through 70 vacant.) | |
| 71. Non-emergency telephone calls | $10 plus long distance charge. |
| 72. Setting up and maintaining a trust account: For 1 year or less to transfer funds to or for the benefit of a U.S. citizen in need in a foreign country | $30. |
| 73. Transportation charges incurred in the performance of fee and no-fee services when appropriate and necessary | Expenses incurred. |
| 74. [Reserved] | |
| 75. Consular Time Charges: As required by this schedule and for fee services performed away from the office or during after-duty hours (per hour or part thereof/per consular officer) | $135 |
| 76. Photocopies (per page) | $1. |
| (Items 77 through 80 vacant.) | |
§ 22.2 Requests for services in the United States.
(a) Requests for records. Requests by the file subject or the individual’s authorized agent for services involving U.S. passport applications and related records, including consular birth, marriage and death records and authentication of other passport file documents, as well as records of births, marriages and deaths within the former Canal Zone of Panama recorded and maintained by the Canal Zone Government from 1904 to September 30, 1979, shall be addressed to Passport Services, Correspondence Branch, Department of State, Washington, D.C. 20524. Requests for consular birth records should specify whether a Consular Report of Birth (Form FS 240, or long form) or Certification of Birth (Form DS 1350, or short form) is desired. Advance remittance of the exact fee is required for each service.
(b) Authentication services. Requests for Department of State authentication of documents other than passport file documents must be accompanied by remittance of the exact total fee chargeable and addressed to the Authentication Officer, Department of State, Washington, DC 20520.
§ 22.3 Remittances in the United States.
(a) Type of remittance. Remittances shall be in the form of: (1) Check or bank draft drawn on a bank in the United States; (2) money order – postal, international or bank; or (3) U.S. currency. Remittances shall be made payable to the order of the Department of State. The Department will assume no responsibility for cash which is lost in the mail.
(b) Exact payment of fees. Fees must be paid in full prior to issuance of requested documents. If uncertainty as to the existence of a record or as to the number of sheets to be copied precludes remitting the exact fee chargeable with the request, the Department of State will inform the interested party of the exact amount required.
§ 22.4 Requests for services, Foreign Service.
Officers of the Foreign Service shall charge for official services performed abroad at the rates prescribed in this schedule, in coin of the United States or at its representative value in exchange (22 U.S.C. 1202). For definition of representative value in exchange, see § 23.4 of this chapter. No fees named in this schedule shall be charged or collected for the official services to American vessels and seamen (22 U.S.C. 1186). The term “American vessels” is defined to exclude, for the purposes of this schedule, undocumented American vessels and the fees prescribed herein shall be charged and collected for such undocumented vessels. However, the fees prescribed herein shall not be charged or collected for American public vessels, which includes any vessel owned or operated by a U.S. Government department or agency and engaged exclusively in official business on a non-commercial basis. This schedule of fees shall be kept posted in a conspicuous place in each Foreign Service consular office, subject to the examination by all persons interested therein (22 U.S.C. 1197).
§ 22.5 Remittances to Foreign Service posts.
Remittances to Foreign Service posts from persons in the United States in payment of offical fees and charges or for the purpose of establishing deposits in advance of rendition of services shall be in a form acceptable to the post, drawn payable to the American Embassy (name of city), American Consulate General (name of city) or American Consulate (name of city), as the case may be. This will permit cashing of negotiable instruments for deposit in the Treasury when not negotiated locally. See § 23.2 of this chapter.
(a) Time at which fees become payable. Fees are due and payble prior to issue or delivery to the interested party of a signed document, a copy of a record, or other paper representative of a service performed.
(b) Receipt for fees; register of services. Every officer of the Foreign Service responsible for the performance of services as enumerated in the Schedule of Fees for Consular Services, Department of State and Foreign Service (§ 22.1), shall give receipts for fees collected for the official services rendered, specifying the nature of the service and numbered to correspond with entries in a register maintained for the purpose (22 U.S.C. 1192, 1193, and 1194). The register serves as a record of official acts performed by officers of the Foreign Service in a governmental or notarial capacity, corresponding in this regard with the record which notaries are usually expected or required to keep of their official acts. See § 92.2 of this chapter.
(c) Deposits to guarantee payment of fees or incidental costs. When the amount of any fee is determinable only after initiation of the performance of a service, or if incidental costs are involved, the total fee and incidental costs shall be carefully estimated and an advance deposit required, subject to refund of any unused balance to the person making the deposit.
§ 22.6 Refund of fees.
(a) Fees which have been collected for deposit in the Treasury are refundable:
(1) As specifically authorized by law (See 22 U.S.C. 214a concerning passport fees erroneously charged persons excused from payment and 46 U.S.C. 8 concerning fees improperly imposed on vessels and seamen);
(2) When the principal officer at the consular post where the fee was collected (or the officer in charge of the consular section at a combined diplomatic/consular post) finds upon review of the facts that the collection was erroneous under applicable law; and
(3) Where determination is made by the Department of State with a view to payment of a refund in the United States in cases which it is impracticable to have the facts reviewed and refund effected by and at the direction of the responsible consular office. See § 13.1 of this chapter concerning refunds of fees improperly exacted by consular officers who have neglected to return the same.
(b) Refunds of $5.00 or less will not be paid to the remitter unless a claim is specifically filed at the time of payment for the excess amount. An automatic refund on overpayments due to misinformation or mistakes on the part of the Department of State will be made.
§ 22.7 Collection and return of fees.
No fees other than those prescribed in the Schedule of Fees, § 22.1, or by or pursuant to an act of Congress, shall be charged or collected by officers of the Foreign Service for official services performed abroad (22 U.S.C. 1201). All fees received by any officer of the Foreign Service for services rendered in connection with the duties of office or as a consular officer shall be accounted for and paid into the Treasury of the United States (22 U.S.C. 99 and 812). For receipt, registry, and numbering provisions, see § 22.5(b). Collections for transportation and other expenses necessary for performance of services or for Interested Party toll telephone calls shall be refunded to post allotment accounts and made available for meeting such expenses.
PART 23 – FINANCE AND ACCOUNTING
§ 23.1 Remittances made payable to the Department of State.
Except as otherwise specified in this title, remittances of moneys shall be drawn payable to the Department of State and sent to the Department for action and deposit. (See §§ 21.2, 22.2, and 51.40 of this chapter.)
§ 23.2 Endorsing remittances for deposit in the Treasury.
The Office of Finance – Cashier Unit, the Authentication Office, the Passport Office or Passport Agency, American Embassy, American Legation, American consular office, or other office or unit of the Department of State authorized and required to deposit funds in the Treasury of the United States, is hereby authorized to endorse, or to have endorsed, to the order of the Treasurer of the United States by appropriate stamp, checks, drafts, money orders, or other forms of remittance, regardless of how drawn, which are for payment to the Department of State for deposit in the Treasury of the United States, including those payable to the Secretary of State.
§ 23.3 Refunds.
(a) Rectifications and readjustments. See § 22.6 of this chapter for outline of circumstances under which fees which have been collected for deposit in the Treasury may be refunded.
(b) Refund of wrongful exactions. See § 13.1 of this chapter concerning recovery from consular officers of amounts wrongfully exacted and withheld by them.
§ 23.4 Representative value in exchange.
Representative value in exchange for the collection of a fee means foreign currency equivalent to the prescribed United States dollar fee at the current rate of exchange at the time and place of payment of the fee. “Current rate” of exchange for this purpose means the bank selling rate at which the foreign bank will sell the number of United States dollars required to liquidate the obligation to the United States for the Foreign Service fee.
§ 23.5 Claims for settlement by Department of State or General Accounting Office.
Claims for settlement by the Department of State or by the General Accounting Office shall be submitted to the Department in duplicate over the handwritten signature, together with the post office address of the claimant, and with appropriate recommendations of the officer of the Foreign Service, for items such as:
(a) Refunds of amounts representing payroll deductions such as for any retirement and disability fund;
(b) Amounts due deceased, incompetent, or insolvent persons including payees or bona fide holders of unpaid Government checks;
(c) Amounts claimed from the Government when questions of fact affect either the amount payable or the terms of payment, when for any reason settlement cannot or should not be affected at the Foreign Service office; and
(d) Amounts of checks, owned by living payees or bona fide holders, which have been covered into outstanding liabilities. The Foreign Service post or the Department of State shall be consulted before preparing the claim to ascertain whether any special form is required to be used. Claims for unpaid compensation of deceased alien employees shall be forwarded to the respective Foreign Service post.
SUBCHAPTER D – CLAIMS AND STOLEN PROPERTY
PART 33 – FISHERMEN’S PROTECTIVE ACT GUARANTY FUND PROCEDURES UNDER SECTION 7
§ 33.1 Purpose.
These rules clarify procedures for the administration of Section 7 of the Fishermen’s Protective Act of 1967. Section 7 of the Act establishes a Fishermen’s Guaranty Fund to reimburse owners and charterers of United States commercial fishing vessels for certain losses and costs caused by the seizure and detention of their vessels by foreign countries under certain claims to jurisdiction not recognized by the United States.
§ 33.2 Definitions.
For the purpose of this part, the following terms mean:
Act. The Fishermen’s Protective Act of 1967 (22 U.S.C. 1971 et seq.).
Capital equipment. Equipment or other property which may be depreciated for income tax purposes.
Depreciated replacement costs. The present replacement cost of capital equipment after being depreciated on a straight line basis over the equipment’s depreciable life, which is standardized at ten years.
Downtime. The time a vessel normally would be in port or transiting to and from the fishing grounds.
Expendable items. Any property, excluding that which may be depreciated for income tax purposes, which is maintained in inventory or expensed for tax purposes.
Fund. The Fishermen’s Guaranty Fund established in the U.S. Treasury under section 7(c) of the Act (22 U.S.C. 1977(c)).
Market value. The price property would command in a market, at the time of property loss, assuming a seller willing to sell and buyer willing to buy.
Other direct charge. Any levy which is imposed in addition to, or in lieu of any fine, license fee, registration fee, or other charge.
Owner. The owner or charterer of a commercial fishing vessel.
Secretary. The Secretary of State or the designee of the Secretary of State.
Seizure. Arrest of a fishing vessel by a foreign country for allegedly illegal fishing.
U.S. fishing vessel. Any private vessel documented or certified under the laws of the United States as a commercial fishing vessel.
§ 33.3 Eligibility.
Any owner or charterer of a U.S. fishing vessel is eligible to apply for an agreement with the Secretary providing for a guarantee in accordance with section 7 of the Act.
§ 33.4 Applications.
(a) Applicant. An eligible applicant for a guaranty agreement must:
(1) Own or charter a U.S. fishing vessel; and
(2) Submit with his application the fee specified in § 33.6 below.
(b) Application forms. Application forms may be obtained by contacting the Office of Marine Conservation, Bureau of Oceans and International Environmental and Scientific Affairs, Room 7820, U.S. Department of State, Washington, DC 20520-7818; Telephone 202-647-3941.
(c) Where to apply. Applications must be submitted to the Director, Office of marine Conservation, Bureau of Oceans and International Environmental and Scientific Affairs, Room 7820, U.S. Department of State, Washington, DC 20520-7818.
(d) Application approval. Application approval will be by execution of the guaranty agreement by the Secretary or by the Secretary’s designee.
§ 33.5 Guaranty agreements.
(a) Period in effect. Agreements are effective for a Fiscal Year beginning October 1 and ending on the next September 30. Applications submitted after October 1 are effective from the date the application and fee are mailed (determined by the postmark) through September 30.
(b) Guaranty agreement transfer. A guaranty agreement may, with the Secretary’s prior consent, be transferred when a vessel which is the subject of a guaranty agreement is transferred to a new owner if the transfer occurs during the agreement period.
(c) Guaranty agreement renewal. A guaranty agreement may be renewed for the next agreement year by submitting an application form with the appropriate fee for the next year in accordance with the Secretary’s annually published requirements regarding fees. Renewals are subject to the Secretary’s approval.
(d) Provisions of the agreement. The agreement will provide for reimbursement for certain losses caused by foreign countries’ seizure and detention of U.S. fishing vessels on the basis of claims to jurisdiction which are not recognized by the United States. Recent amendments to the Magnuson Fishery Conservation and Management Act (16 U.S.C. (1801 et seq.) assert U.S. jurisdiction over highly migratory species of tuna in the U.S. exclusive economic zone (EEZ). Accordingly, as a matter of international law, the United States now recognizes other coastal states’ claims to jurisdiction over tuna in their EEZ’S. This change directly affect certification of claims filed under the Fishermen’s Protective Act. Participants are advised that this means that the Department will no longer certify for payment claims resulting from the seizure of a U.S. vessel while such vessel was fishing for tuna within the exclusive economic zone of another country in violation of that country’s laws. Claims for detentions or seizures based on other claims to jurisdiction not recognized by the United States, or on the basis of claims to jurisdiction recognized by the United States but exercised in a manner inconsistent with international law as recognized by the United states, may still be certified by the Department.
§ 33.6 Fees.
(a) General. Fees provide for administrative costs and payment of claims. Fees are set annually on the basis of past and anticipated claim experience. The annual agreement year for which fees are payable starts on October 1 and ends on September 30 of the following year.
(b) Amount and payment. The amount of each annual fee or adjusted fee will be established by the Office Director of the Office of Marine Conservation, Bureau of Oceans and International Environmental and Scientific Affairs, by publication of a notice in the
(c) Adjustment and refund. Fees may be adjusted at any time to reflect actual seizure and detention experience for which claims are anticipated. Failure to submit adjusted fees will result in agreement termination as of the date the adjusted fee is payable. No fees will be refunded after an agreement is executed by the Secretary.
(d) Disposition. All fees will be deposited in the Fishermen’s Guaranty Fund. They will remain available without fiscal year limitation to carry out section 7 of the Act. Claims will be paid from fees and from appropriated funds, if any. Fees not required to pay administrative costs or claims may be invested in U.S. obligations. All earnings will be credited to the Fishermen’s Guaranty Fund.
§ 33.7 Conditions for claims.
(a) Unless there is clear and convincing credible evidence that the seizure did not meet the requirements of the Act, payment of claims will be made when:
(1) A covered vessel is seized by a foreign country under conditions specified in the Act and the guaranty agreement; and
(2) The incident occurred during the period the guaranty agreement was in force for the vessel involved.
(b) Payments will be made to the owner for:
(1) All actual costs (except those covered by section 3 of the Act or reimbursable from some other source) incurred by the owner during the seizure or detention period as a direct result thereof, including:
(i) Damage to, or destruction of, the vessel or its equipment; or
(ii) Loss or confiscation of the vessel or its equipment; and
(iii) Dockage fees or utilities;
(2) The market value of fish or shellfish caught before seizure of the vessel and confiscated or spoiled during the period of detention; and
(3) Up to 50 percent of the vessel’s gross income lost as a direct result of the seizure and detention.
(c) The exceptions are that no payment will be made from the Fund for a seizure which is:
(1) Covered by any other provision of law (for example, fines, license fees, registration fees, or other direct charges payable under section 3 of the Act);
(2) Made by a country at war with the United States;
(3) In accordance with any applicable convention or treaty, if that treaty or convention was made with the advice and consent of the Senate and was in force and effect for the United States and the seizing country at the time of the seizure;
(4) Which occurs before the guaranty agreement’s effective date or after its termination;
(5) For which other sources of alternative reimbursement have not first been fully pursued (for example, the insurance coverage required by the agreement and valid claims under any law);
(6) For which material requirements of the guaranty agreement, the Act, or the program regulations have not been fully fulfilled; or
(7) In the view of the Department of State occurred because the seized vessel was undermining or diminishing the effectiveness of international conservation and management measures recognized by the United States, or otherwise contributing to stock conservation problems pending the establishment of such measures.
§ 33.8 Claim procedures.
(a) Where and when to apply. Claims must be submitted to the Office Director, Office of Marine Conservation, Bureau of Oceans and International Environmental and Scientific Affairs, Room 7820, U.S. Department of State, Washington, DC 20520-7818. Claims must be submitted within ninety (90) days after the vessel’s release. Requests for extension of the filing deadline must be in writing and approved by the Office Director, Office of Marine Conservation, Bureau of Oceans and International Environmental and Scientific Affairs.
(b) Contents of claim. All material allegations of a claim must be supported by documentary evidence. Foreign language documents must be accompanied by an authenticated English translation. Claims must include:
(1) The captain’s sworn statement about the exact location and activity of the vessel when seized;
(2) Certified copies of charges, hearings, and findings by the government seizing the vessel;
(3) A detailed computation of all actual costs directly resulting from the seizure and detention, supported by receipts, affidavits, or other documentation acceptable to the Office Director, Office of Marine Conservation, Bureau of Oceans and International Environmental and Scientific Affairs;
(4) A detailed computation of lost income claimed, including:
(i) The date and time seized and released;
(ii) The number of miles and running time from the point of seizure to the point of detention;
(iii) The total fishing time lost (explain in detail if lost fishing time claimed is any greater than the elapsed time from seizure to the time required after release to return to the point of seizure);
(iv) The tonnage of catch on board at the time of seizure;
(v) The vessel’s average catch-per-day’s fishing for the three calendar years preceding the seizure;
(vi) The vessel’s average downtime between fishing trips for the three calendar years preceding the seizure; and
(vii) The price-per-pound for the catch on the first day the vessel returns to port after the seizure and detention unless there is a pre-negotiated price-per-pound with a processor, in which case the pre-negotiated price must be documented; and
(5) Documentation for confiscated, damaged, destroyed, or stolen equipment, including:
(i) The date and cost of acquisition supported by invoices or other acceptable proof of ownership; and
(ii) An estimate from a commercial source of the replacement or repair cost.
(c) Burden of proof. The claimant has the burden of proving all aspects of the claim, except in cases of dispute over the facts of the seizure where the claimant shall have the presumption that the seizure was eligible unless there is clear and convincing credible evidence that the seizure did not meet the eligibility standards of the Act.
§ 33.9 Amount of award.
(a) Lost fishing time. Compensation is limited to 50 percent of the gross income lost as a direct result of the seizure and detention, based on the value of the average catch-per-day’s fishing during the three most recent calendar years immediately preceding the seizure as determined by the Secretary, based on catch rates on comparable vessels in comparable fisheries. The compensable period for cases of seizure and detention not resulting in vessels confiscation is limited to the elapsed time from seizure to the time after release when the vessel could reasonably be expected to return to the point of seizure. The compensable period in cases where the vessel is confiscated is limited to the elapsed time from seizure through the date of confiscation, plus an additional period to purchase a replacement vessel and return to the point of seizure. In no case can the additional period exceed 120 days.
(1) Compensation for confiscation of vessels, where no buy-back has occurred, will be based on market value which will be determined by averaging estimates of market value obtained from as many vessel surveyors or brokers as the Secretary deems practicable;
(2) Compensation for capital equipment other than vessel, will be based on depreciated replacement cost;
(3) Compensation for expendable items and crew’s belongings will be 50 percent of their replacement costs; and
(4) Compensation for confiscated catch will be for full value, based on the price-per-pound.
(b) Fuel expense. Compensation for fuel expenses will be based on the purchase price, the time required to run to and from the fishing grounds, the detention time in port, and the documented fuel consumption of the vessel.
(c) Stolen or confiscated property. If the claimant was required to buy back confiscated property from the foreign country, the claimant may apply for reimbursement of such charges under section 3 of the Act. Any other property confiscated is reimbursable from this Guaranty Fund. Confiscated property is divided into the following categories:
(1) Compensation for confiscation of vessels, where no buy-back has occurred, will be based on market value which will be determined by averaging estimates of market value obtained from as many vessel surveyors or brokers as the Secretary deems practicable;
(2) Compensation for capital equipment other than a vessel, will be based on depreciated replacement cost;
(3) Compensation for expendable items and crew’s belongings will be 50 percent of their replacement cost; and
(4) Compensation for confiscated catch will be for full value, based on the price-per-pound.
(d) Insurance proceeds. No payments will be made from the Fund for losses covered by any policy of insurance or other provisions of law.
(e) [Reserved]
(f) Appeals. All determinations under this section are final and are not subject to arbitration or appeal.
§ 33.10 Payments.
The Office Director, Office of Marine Conservation, Bureau of Oceans and International Environmental and Scientific Affairs, will pay the claimant the amount calculated under § 33.9. Payment will be made as promptly as practicable, but may be delayed pending the appropriation of sufficient funds, should fee collections not be adequate to sustain the operation of the Fund. The Director shall notify the claimant of the amount approved for payment as promptly as practicable and the same shall thereafter constitute a valid, but non-interest bearing obligation of the Government. Delays in payments are not a direct consequence of seizure and detention and cannot therefore be construed as increasing the compensable period for lost fishing time. If there is a question about distribution of the proceeds of the claim, the Director may request proof of interest from all parties, and will settle this issue.
§ 33.11 Records.
The Office Director, Office of Marine Conservation, Bureau of Oceans and International Environmental and Scientific Affairs will have the right to inspect claimants’ books and records as a precondition to approving claims. All claims must contain written authorization of the guaranteed party for any international, federal, state, or local governmental Agencies to provide the Office Director, Office of Marine Conservation, Bureau of Oceans and International Environmental and Scientific Affairs any data or information pertinent to a claim.
§ 33.12 Penalties.
Persons who willfully make any false or misleading statement or representation to obtain compensation from the Fund are subject to criminal prosecution under 22 U.S.C. 1980(g). This provides penalties up to $25,000 or imprisonment for up to one year, or both. Any evidence of criminal conduct will be promptly forwarded to the United States Department of Justice for action. Additionally, misrepresentation, concealment, or fraud, or acts intentionally designed to result in seizure, may void the guaranty agreement.
PART 34 – DEBT COLLECTION
Subpart A – General Provisions
§ 34.1 Purpose.
These regulations prescribe the procedures to be used by the United States Department of State (STATE) in the collection of debts owed to STATE and to the United States.
§ 34.2 Scope.
(a) Except as set forth in this part or otherwise provided by law, STATE will conduct administrative actions to collect debts (including offset, compromise, suspension, termination, disclosure and referral) in accordance with the Federal Claims Collection Standards (FCCS) of the Department of the Treasury and Department of Justice, 31 CFR parts 900-904.
(b) This part is not applicable to STATE claims against another Federal agency, any foreign country or any political subdivision thereof, or any public international organization.
§ 34.3 Exceptions.
(a) Debts arising from the audit of transportation accounts pursuant to 31 U.S.C. 3726 shall be determined, collected, compromised, terminated, or settled in accordance with the regulations published at 41 CFR part 102-118.
(b) Debts arising out of acquisition contracts subject to the Federal Acquisition Regulation (FAR) shall be determined, collected, compromised, terminated, or settled in accordance with those regulations (see 48 CFR part 32).
(c) Debts based in whole or in part on conduct in violation of the antitrust laws, or in regard to which there is an indication of fraud, presentation of a false claim, or misrepresentation on the part of the debtor or any other party having an interest in the claim, shall be referred to the Department of Justice for compromise, suspension, or termination of collection action.
(d) Tax debts are excluded from the coverage of this regulation.
§ 34.4 Definitions.
For purposes of the section:
(a) Administrative offset means withholding funds payable by the United States to, or held by the United States for, a person to satisfy a debt owed by the person to the United States.
(b) Administrative wage garnishment means the process by which a Federal agency orders a non-Federal employer to withhold amounts from a debtor’s wages to satisfy a debt owed to the United States.
(c) Compromise means that the creditor agency accepts less than the full amount of an outstanding debt in full satisfaction of the entire amount of the debt.
(d) Creditor agency means the Federal agency to which a debt is owed.
(e) Debt or claim means an amount of money which has been determined to be owed to the United States from any person. A debtor’s liability arising from a particular contract or transaction shall be considered a single claim for purposes of the monetary ceilings of the FCCS.
(f) Debtor means a person who owes the Federal government money.
(g) Delinquent debt means a debt that has not been paid by the date specified in STATE’s written notification or applicable contractual agreement, unless other satisfactory arrangements have been made by that date, or that has not been paid in accordance with a payment agreement with STATE.
(h) Discharge means the release of a debtor from personal liability for a debt. Further collection action is prohibited.
(i) Disposable pay means the amount that remains from an employee’s current basic pay, special pay, incentive pay, retired pay, retainer pay, or in the case of an employee not entitled to basic pay, other authorized pay remaining after required deductions for Federal, State and local income taxes; Social Security taxes, including Medicare taxes; Federal retirement programs; normal premiums for life and health insurance benefits and such other deductions that are required by law to be withheld, excluding garnishments.
(j) FCCS means the Federal Claims Collection Standards published jointly by the Departments of the Treasury and Justice and codified at 31 CFR parts 900-904.
(k) Person means an individual, corporation, partnership, association, organization, State or local government, or any other type of entity other than a Federal agency, Foreign Government, or public international organization.
(l) Salary offset means the withholding of amounts from the current pay account of a Federal employee to satisfy a debt owed by that employee to the United States.
(m) Suspension means the temporary cessation of active debt collection pending the occurrence of an anticipated event.
(n) Termination means the cessation of all active debt collection action for the foreseeable future.
(o) Waiver means a decision to forgo collection of a debt owed to the United States, as provided for by a specific statute and according to the standards set out under that statute.
§ 34.5 Other procedures or actions.
(a) Nothing contained in this regulation is intended to require STATE to duplicate administrative proceedings required by contract or other laws or regulations.
(b) Nothing in this regulation is intended to preclude utilization of informal administrative actions or remedies which may be available.
(c) Nothing contained in this regulation is intended to deter STATE from demanding the return of specific property or from demanding the return of the property or the payment of its value.
(d) The failure of STATE to comply with any provision in this regulation shall not serve as defense to the debt.
§ 34.6 Interest, penalties, and administrative costs.
Except as otherwise provided by statute, contract or excluded in accordance with the FCCS, STATE will assess:
(a) Interest on delinquent debts in accordance with 31 CFR 901.9.
(b) Penalties at the rate of 6 percent a year or such other rate as authorized by law on any portion of a debt that is delinquent for more than 90 days.
(c) Administrative costs to cover the costs of processing and calculating delinquent debts.
(d) Late payment charges under paragraphs (a) and (b) of this section shall be computed from the date of delinquency.
(e) When a debt is paid in partial or installment payments, amounts received shall be applied first to outstanding penalty and administrative cost charges, second to accrued interest, and then to outstanding principal.
(f) STATE shall consider waiver of interest, penalties and/or administrative costs in accordance with the FCCS, 31 CFR 901.9(g).
§ 34.7 Collection in installments.
Whenever feasible, and except as required otherwise by law, debts owed to the United States, together with interest, penalties, and administrative costs as required by this regulation, should be collected in one lump sum. This is true whether the debt is being collected under administrative offset, including salary offset, or by another method, including voluntary payment. However, if the debtor is financially unable to pay the indebtedness in one lump sum, payment may be accepted in regular installments. If STATE agrees to accept payment in installments, it may require a legally enforceable written agreement from the debtor that specifies all of the terms of the arrangement and which contains a provision accelerating the debt in the event the debtor defaults. The size and frequency of the payments should bear a reasonable relation to the size of the debt and ability of the debtor to pay. If possible, the installment payments should be sufficient in size and frequency to liquidate the Government’s claim within 3 years.
Subpart B – Collection Actions
§ 34.8 Notice and demand for payment.
(a) STATE shall promptly hand deliver, send by first class mail to the debtor’s most current address in the records of STATE, or, in appropriate circumstances, send by electronic mail to the debtor’s most current address in the records of STATE, at least one written notice. Written demand under this subpart may be preceded by other appropriate actions under this part and or the FCCS, including but not limited to actions taken under the procedures applicable to administrative offset, including salary offset.
(b) The written notice shall inform the debtor of:
(1) The basis of the debt;
(2) The amount of the debt;
(3) The date by which payment should be made to avoid the imposition of interest, penalties and administrative costs, and the enforced collection actions described in paragraph (b)(7) of this section;
(4) The applicable standards for imposing of interest, penalties and administrative costs to delinquent debts;
(5) STATE’s readiness to discuss alternative payment arrangements and how the debtor may offer to enter into a written agreement to repay the debt under terms acceptable to STATE;
(6) The name, address and telephone number of a contact person or office within STATE;
(7) STATE’s intention to enforce collection by taking one or more of the following actions if the debtor fails to pay or otherwise resolve the debt:
(i) Offset from Federal payments otherwise due to the debtor, including income tax refunds, salary, certain benefit payments, retirement, vendor payments, travel reimbursement and advances, and other Federal payments due from STATE, other Federal agencies, or through centralized disbursing from the Department of the Treasury;
(ii) Referral to private collection agency
(iii) Report to credit bureaus
(iv) Administrative Wage Garnishment
(v) Litigation by the Department of Justice
(vi) Referral to the Financial Management Service of the Department of the Treasury for collection
(vii) Liquidation of collateral
(viii) Other actions as permitted by the FCCS and applicable law;
(8) The debtor’s right to inspect and copy records related to the debt;
(9) The debtor’s right to an internal review of STATE’s determination that the debtor owes a debt or the amount of the debt;
(10) The debtor’s right, if any, to request waiver of collection of certain debts, as applicable (see § 34.18);
(11) Requirement that the debtor advise STATE of any bankruptcy proceeding of the debtor; and
(12) Provision for refund of amounts collected if later decision finds that the amount of the debt is not owed or is waived.
(c) Exceptions to notice requirements. STATE may omit from a notice to a debtor one or more of the provisions contained in paragraphs (b)(7) through (b)(12) of this section if STATE determines that any provision is not legally required given the collection remedies to be applied to a particular debt, or which have already been provided by prior notice, applicable agreement, or contract.
§ 34.9 Requests for internal administrative review.
(a) For all collection methods for debts owed to STATE, the debtor may request a review within State of the existence or the amount of the debt. For offset of current Federal salary under 5 U.S.C. 5514 for certain debts, debtors may also request an outside hearing. See subpart C of this part. This subpart rather than subpart C applies to collections by salary offset for debts arising under 5 U.S.C. 5705 (travel advances), 5 U.S.C. 4108 (training expenses), and other statutes specifically providing for collection by salary offset.
(b) A debtor requesting an internal review shall do so in writing to the contact office by the payment due date stated within the initial notice sent under 34.8(b) or other applicable provision. The debtor’s written request shall state the basis for the dispute and include any relevant documentation in support.
(1) STATE will provide for an internal review of the debt by an appropriate official. The review may include examination of documents, internal discussions with relevant officials and discussion by letter or orally with the debtor, at STATE’s discretion. An oral hearing may be provided when the matter cannot be decided on the documentary record because it involves issues of credibility or veracity. Unless otherwise required by law, such oral hearing shall not be a formal evidentiary hearing. If an oral hearing is appropriate, the time and location of the hearing shall be established by STATE. An oral hearing may be conducted, at the debtor’s option, either in-person or by telephone conference. All travel expenses incurred by the debtor in connection with an in-person hearing will be borne by the debtor. All telephonic charges incurred during the hearing will be the responsibility of STATE. During the period of review, STATE may suspend collection activity, including the accrual of interest and penalties, on any disputed portion of the debt if STATE determines that suspension is in the Department’s best interest or would serve equity and good conscience.
(2) If after review STATE either sustains or amends its determination, it shall notify the debtor of its intent to collect the sustained or amended debt. If previously suspended, collection actions will be re-instituted unless payment of the sustained or amended amount is received or the debtor has made a proposal for a payment plan to which STATE agrees, by the date specified in the notification of STATE’s decision.
§ 34.10 Collection methods.
Upon completion of notice and provision of all due process rights as listed in 34.8(b) of this section and upon final determination of the existence and amount of a debt, unless other acceptable payment arrangements have been made or procedures under a specific statute apply, STATE shall collect the debt by one or more of the following methods:
(a) Administrative offset. (1) Payments otherwise due the debtor from the United States shall be offset from the debt in accordance with 31 CFR 901.3. These may be funds under the control of the Department of State or other Federal agencies. Collection may be made through centralized offset by the Financial Management Service (“FMS”) of the Department of the Treasury.
(2) Such payments include but are not limited to vendor payments, salary, retirement, lump sum payments due upon Federal employment separation, travel reimbursements, tax refunds, loans or other assistance. For offset of Federal salary payments under 5 U.S.C. 5514 for certain types of debt see subpart C of this part.
(3) Administrative offset under this subsection does not apply to debts specified in the FCCS, 31 CFR 901.3(a)(2).
(4) Before administrative offset is instituted by another Federal agency or the FMS, STATE shall certify in writing to that entity that the debt is past due and legally enforceable and that STATE has complied with all applicable due process and other requirements as described in this part and other Federal law and regulations.
(5) Administrative offset of anticipated or future benefit payments under the Civil Service Retirement and Disability Fund will be requested by STATE pursuant to 5 CFR 831.1801-1808.
(6) Expedited offset. STATE may effect an offset against a debtor prior to sending a notice to the debtor as described in § 34.8, when:
(i) The offset is in the nature of a recoupment,
(ii) Offset is executed pursuant to procedures set out in the Contracts Disputes Act,
(iii) Previous notice and opportunity for review have been given, or
(iv) There is insufficient time before payment would be made to the debtor/payee to allow prior notice and an opportunity for review. In such case, STATE shall give the debtor notice and an opportunity for review as soon as practicable and shall promptly refund any money ultimately found not to have been owed to the Government.
(b) Referral to private collection agency. STATE may contract for collection services to recover delinquent debts, or transfer a delinquent debt to FMS for private collection action, pursuant to 31 U.S.C. 3718, 22 U.S.C. 2716 and the FCCS, 31 CFR 901.5, as applicable. STATE will not use a collection agency to collect a debt owed by a currently employed or retired Federal employee, if collection by salary or annuity offset is available.
(c) Disclosure to consumer reporting agencies. STATE may disclose delinquent debts to consumer reporting agencies and other automated databases in accordance with 31 U.S.C. 3711(e) and the FCCS, 31 CFR 901.4, and in compliance with the Bankruptcy Code and the Privacy Act 5 U.S.C. 552a.
(d) Liquidation of Collateral, if applicable, in accordance with the FCCS, 31 CFR 901.7.
(e) Suspension or revocation of eligibility for loans and loan guaranties, licenses, permits, or privileges in accordance with the FCCS, 31 CFR 901.6.
(f) Litigation. Debts may be referred to the Department of Justice for litigation for collection in accordance with the standards set forth in the FCCS, 31 CFR part 904.
(g) Transfer to FMS. Debts delinquent more than 180 days shall be transferred to the Financial Management Service of the Department of the Treasury for collection by all available means. Debts delinquent less that 180 days may also be so transferred.
(h) Administrative wage garnishment. STATE may collect debts from a non-Federal employee’s wages by means of administrative wage garnishment in accordance with the requirements of 31 U.S.C. 3720D and 31 CFR 285.11. All parts of 31 CFR 285.11 are incorporated by reference into these regulations, including the hearing procedures described in 31 CFR 285.11(f).
(i) Salary offset. See subpart C of this part.
Subpart C – Salary Offset
§ 34.11 Scope.
(a) This subpart sets forth STATE’s procedures for the collection of a Federal employee’s current pay by salary offset to satisfy certain debts owed to the United States.
(b) This subpart applies to:
(1) Current employees of STATE and other agencies who owe debts to STATE;
(2) Current employees of STATE who owe debts to other agencies.
(c) This subpart does not apply to
(1) Offset of a separating employee’s final payments or Foreign Service annuity payments which are covered under administrative offset (See § 34.10(a)),
(2) Debts or claims arising under the Internal Revenue Code of 1954 (26 U.S.C. 1 et seq.); the Social Security Act (42 U.S.C. 301 et seq.); the tariff laws of the United States.
(3) Any adjustment to pay arising out of an employee’s election of coverage or a change in coverage under a Federal benefits program requiring periodic deductions from pay, if the amount to be recovered was accumulated over 4 pay periods or less.
(4) Any routine intra-agency adjustment of pay that is made to correct an overpayment of pay attributable to clerical or administrative errors or delays in processing pay documents, if the overpayment occurred within the 4 pay periods preceding the adjustment and, at the time of such adjustment, or as soon thereafter as practical, the individual is provided written notice of the nature and the amount of the adjustment and point of contact for contesting such adjustment.
(5) Any adjustment to collect a debt amounting to $50 or less, if, at the time of such adjustment, or as soon thereafter as practical, the individual is provided written notice of the nature and the amount of the adjustment and a point of contact for contesting such adjustment.
(d) These regulations do not preclude an employee from requesting waiver of the debt, if waiver is available under subpart D of this part or by other regulation or statute.
(e) Nothing in these regulations precludes the compromise, suspension or termination of collection actions where appropriate under subpart D of this part or other regulations or statutes.
§ 34.12 Coordinating offset with another Federal agency.
(a) When STATE is owed a debt by an employee of another agency, the other agency shall not initiate the requested offset until STATE provides the agency with a written certification that the debtor owes STATE a debt (including the amount and basis of the debt and the due date of payment) and that STATE has complied with these regulations.
(b) When another agency is owed the debt, STATE may use salary offset against one of its employees who is indebted to another agency, if requested to do so by that agency. Such request must be accompanied by a certification that the person owes the debt (including the amount and basis of the debt and the due date of payment) and that the agency has complied with its regulations as required by 5 U.S.C. 5514 and 5 CFR part 550, subpart K.
§ 34.13 Notice requirements before offset.
Except as provided in § 34.16, salary offset deductions will not be made unless STATE first provides the employee with a written notice that he/she owes a debt to the Federal Government at least 30 calendar days before salary offset is to be initiated. When STATE is the creditor agency, this notice of intent to offset an employee’s salary shall be hand-delivered or sent by electronic mail to the employee’s STATE issued electronic mail address and will state:
(a) That STATE has reviewed the records relating to the debt and has determined that the debt is owed, its origin and nature, and the amount due;
(b) The intention of STATE to collect the debt by means of deduction from the employee’s current pay until the debt and any and all accumulated interest, penalties and administrative costs are paid in full;
(c) The amount, frequency, approximate beginning date, and duration of the intended deductions;
(d) The requirement to assess and collect interest, penalties, and administrative costs in accordance with § 34.6, unless waived in accordance with § 34.6(f);
(e) The employee’s right to inspect and copy any STATE records relating to the debt, or, if the employee or their representative cannot personally inspect the records, to request and receive a copy of such records;
(f) The opportunity to voluntarily repay the debt or to enter into a written agreement (under terms agreeable to STATE) to establish a schedule for repayment of the debt in lieu of offset;
(g) Right to an internal review or outside hearing. (1) An internal review under § 34.9 may be requested in cases of collections by salary offset for debts arising under 5 U.S.C. 5705 (travel advances), 5 U.S.C. 4108 (training expenses), and other statutes specifically providing for collection by salary offset.
(2) For all other debts, an internal review or an outside hearing conducted by an official not under the supervision or control of STATE may be requested with respect to the existence of the debt, the amount of the debt, or the repayment schedule (i.e., the percentage of disposable pay to be deducted each pay period);
(h) That the timely filing of a request for an outside hearing or internal review within 30 calendar days after the date of the notice of intent to offset will stay the commencement of collection proceedings;
(i) The method and time period for requesting an internal review or outside hearing;
(j) That a final decision on the internal review or outside hearing (if one is requested) will be issued at the earliest practical date, but not later than 60 days after the filing of the request, unless the employee requests and the outside hearing official grants a delay in the proceedings;
(k) That any knowingly false or frivolous statements, representation, or evidence may subject the employee to disciplinary procedures (5 U.S.C. Chapter 75, 5 CFR part 752 or other applicable statutes or regulations); penalties (31 U.S.C. 3729-3731 or other applicable statutes or regulations); or criminal penalties (18 U.S.C. 286, 287, 1001, and 1002 or other applicable statutes or regulations);
(l) Any other rights and remedies available to the employee under statutes or regulations governing the program for which the collection is being made;
(m) That the amounts paid on the debt which are later waived or found not owed to the United States will be promptly refunded to the employee, unless there are applicable contractual or statutory provisions to the contrary; and
(n) The name and address of the STATE official to whom communications should be directed.
§ 34.14 Request for an outside hearing for certain debts.
(a) Except as provided in paragraph (d) of this section, an employee must file a request that is received by STATE not later than 30 calendar days from the date of STATE’s notice described in § 34.13 if an employee wants an outside hearing pursuant to § 34.13(g)(2) concerning:
(1) The existence or amount of the debt; or
(2) STATE’s proposed offset schedule.
(b) The request must be signed by the employee and should identify and explain with reasonable specificity and brevity the facts, evidence and witnesses which the employee believes support his or her position. If the employee objects to the percentage of disposable pay to be deducted from each check, the request should state the objection and the reasons for it.
(c) The employee must also specify whether an oral or paper hearing is requested. If an oral hearing is desired, the request should explain why the matter cannot be resolved by review of the documentary evidence alone.
(d) If the employee files a request for an outside hearing later than the required 30 calendar days as described in paragraph (a) of this section, STATE may accept the request if the employee can show that the delay was because of circumstances beyond his or her control or because of failure to receive notice of the filing deadline (unless the employee has actual notice of the filing deadline).
(e) An employee waives the right to an outside hearing and will have his or her pay offset if the employee fails to file a petition for a hearing as prescribed in paragraph (a) of this section.
§ 34.15 Outside hearings.
(a) If an employee timely files a request for an outside hearing under § 34.13(g)(2), pursuant to 5 U.S.C. 5514(a)(2), STATE shall select the time, date, and location of the hearing.
(b) Outside hearings shall be conducted by a hearing official not under the supervision or control of STATE.
(c) Procedure. (1) After the employee requests a hearing, the hearing official shall notify the employee of the form of the hearing to be provided. If the hearing will be oral, notice shall set forth the date, time and location of the hearing. If the hearing will be paper, the employee shall be notified that he or she should submit arguments in writing to the hearing official by a specified date after which the record shall be closed. This date shall give the employee reasonable time to submit documentation.
(2) Oral hearing. An employee who requests an oral hearing shall be provided an oral hearing if the hearing official determines that the matter cannot be resolved by review of documentary evidence alone (e.g., when an issue of credibility or veracity is involved). The hearing is not an adversarial adjudication, and need not take the form of an evidentiary hearing.
(3) Paper hearing. If the hearing official determines that an oral hearing is not necessary, he or she will make a decision based upon a review of the available written record.
(4) Record. The hearing official must maintain a summary record of any hearing provided by this subpart. Witnesses who provide testimony will do so under oath or affirmation.
(5) Content of decision. The written decision shall include:
(i) A statement of the facts presented to support the origin, nature, and amount of the debt;
(ii) The hearing official’s findings, analysis, and conclusions; and
(iii) The terms of any repayment schedules, or the date salary offset will commence, if applicable.
(6) Failure to appear. In the absence of good cause shown (e.g., excused illness), an employee who fails to appear at a hearing shall be deemed, for the purpose of this subpart, to admit the existence and amount of the debt as described in the notice of intent. The hearing official shall schedule a new hearing date upon the request of the creditor agency representative when good cause is shown.
(d) A hearing official’s decision is considered to be an official certification regarding the existence and amount of the debt for purposes of executing salary offset under 5 U.S.C. 5514 only. It does not supersede the finding by STATE that a debt is owed and does not affect the Government’s ability to recoup the indebtedness through alternative collection methods under § 34.10.
§ 34.16 Procedures for salary offset.
Unless otherwise provided by statute or contract, the following procedures apply to salary offset:
(a) Method. Salary offset will be made by deduction at one or more officially established pay intervals from the current pay account of the employee without his or her consent.
(b) Source. The source of salary offset is current disposable pay.
(c) Types of collection. (1) Lump sum payment. Ordinarily debts will be collected by salary offset in one lump sum if possible. However, if the amount of the debt exceeds 15 percent of disposable pay for an officially established pay interval, the collection by salary offset must be made in installment deductions.
(2) Installment deductions. (i) The size of installment deductions must bear a reasonable relation to the size of the debt and the employee’s ability to pay. If possible, the size of the deduction will be that necessary to liquidate the debt in no more than 1 year. However, the amount deducted for any period must not exceed 15 percent of the disposable pay from which the deduction is made, except as provided by other regulations or unless the employee has agreed in writing to a greater amount.
(ii) Installment payments of less than $25 per pay period will be accepted only in the most unusual circumstances.
(iii) Installment deductions will be made over a period of not greater than the anticipated period of employment.
§ 34.17 Non-waiver of rights by payments.
So long as there are no statutory or contractual provisions to the contrary, no employee payment (of all or a portion of a debt) collected under this subpart will be interpreted as a waiver of any rights that the employee may have under 5 U.S.C. 5514.
Subpart D – Collection Adjustments
§ 34.18 Waivers of indebtedness.
(a) Waivers of indebtedness may be granted only as provided for certain types of debt by specific statutes and according to the standards set out under those statutes.
(b) Authorities – (1) Debts arising out of erroneous payments of pay and allowances. 5 U.S.C. 5584 provides authority for waiving in whole or in part debts arising out of erroneous payments of pay and allowances, and travel, transportation and relocation expenses and allowances, if collection would be against equity and good conscience and not in the best interests of the United States.
(i) Waiver may not be granted if there exists in connection with the claim an indication of fraud, misrepresentation, fault, or lack of good faith on the part of the employee or any other person having an interest in obtaining a waiver.
(ii) Fault is considered to exist if in light of the circumstances the employee knew or should have known through the exercise of due diligence that an error existed but failed to take corrective action. What an employee should have known is evaluated under a reasonable person standard. Employees are, however, expected to have a general understanding of the Federal pay system applicable to them.
(iii) An employee with notice that a payment may be erroneous is expected to make provisions for eventual repayment. Financial hardship is not a basis for granting a waiver for an employee who was on notice of an erroneous payment.
(iv) If the deciding official finds no indication of fraud, misrepresentation, fault, or lack of good faith on the part of the employee or any other person having an interest in obtaining a waiver of the claim, the employee is not automatically entitled to a waiver. Before a waiver can be granted, the deciding official must also determine that collection of the claim against an employee would be against equity and good conscience and not in the best interests of the United States. Factors to consider when determining if collection of a claim against an employee would be against equity and good conscience and not in the best interests of the United States include, but are not limited to:
(A) Whether collection of the claim would cause serious financial hardship to the employee from whom collection is sought.
(B) Whether, because of the erroneous payment, the employee either has relinquished a valuable right or changed positions for the worse, regardless of the employee’s financial circumstances.
(C) The time elapsed between the erroneous payment and discovery of the error and notification of the employee;
(D) Whether failure to make restitution would result in unfair gain to the employee;
(E) Whether recovery of the claim would be unconscionable under the circumstances.
(2) Debts arising out of advances in pay. 5 U.S.C. 5524a provides authority for waiving in whole or in part a debt arising out of an advance in pay if it is shown that recovery would be against equity and good conscience or against the public interest.
(i) Factors to be considered when determining if recovery of an advance payment would be against equity and good conscience or against the public interest include, but are not limited to:
(A) Death of the employee;
(B) Retirement of the employee for disability;
(C) Inability of the employee to return to duty because of disability (supported by an acceptable medical certificate); and
(D) Whether failure to repay would result in unfair gain to the employee.
(ii) [Reserved]
(3) Debts arising out of advances in situations of authorized or ordered departures. 5 U.S.C. 5522 provides authority for waiving in whole or in part a debt arising out of an advance payment of pay, allowances, and differentials provided under this section if it is shown that recovery would be against equity and good conscience or against the public interest.
(i) Factors to be considered when determining if recovery of an advance payment would be against equity and good conscience or against the public interest include, but are not limited to:
(A) Death of the employee;
(B) Retirement of the employee for disability;
(C) Inability of the employee to return to duty because of disability (supported by an acceptable medical certificate); and
(D) Whether failure to repay would result in unfair gain to the employee.
(ii) [Reserved]
(4) Debts arising out of advances of allowances and differentials for employees stationed abroad. 5 U.S.C. 5922 provides authority for waiving in whole or in part a debt arising out of an advance of allowances and differentials provided under this subchapter if it is shown that recovery would be against equity and good conscience or against the public interest.
(i) Factors to be considered when determining if recovery of an advance payment would be against equity and good conscience or against the public interest include, but are not limited to:
(A) Death of the employee;
(B) Retirement of the employee for disability;
(C) Inability of the employee to return to duty because of disability (supported by an acceptable medical certificate); and
(D) Whether failure to repay would result in unfair gain to the employee.
(ii) [Reserved]
(5) Debts arising out of employee training expenses. 5 U.S.C. 4108 provides authority for waiving in whole or in part a debt arising out of employee training expenses if it is shown that recovery would be against equity and good conscience or against the public interest.
(i) Factors to be considered when determining if recovery of a debt arising out of employee training expenses would be against equity and good conscience or against the public interest include, but are not limited to:
(A) Death of the employee;
(B) Retirement of the employee for disability;
(C) Inability of the employee to return to duty because of disability (supported by an acceptable medical certificate); and
(D) Whether failure to repay would result in unfair gain to the employee.
(ii) [Reserved]
(6) Under-withholding of life insurance premiums. 5 U.S.C. 8707(d) provides authority for waiving the collection of unpaid deductions resulting from under-withholding of Federal Employees’ Group Life Insurance Program premiums if the individual is without fault and recovery would be against equity and good conscience.
(i) Fault is considered to exist if in light of the circumstances the employee knew or should have known through the exercise of due diligence that an error existed but failed to take corrective action.
(ii) Factors to be considered when determining whether recovery of unpaid deduction resulting from under-withholding would be against equity and good conscience include, but are not limited to:
(A) Whether collection of the claim would cause serious financial hardship to the individual from whom collection is sought.
(B) The time elapsed between the failure to properly withhold and discovery of the failure and notification of the individual;
(C) Whether failure to make restitution would result in unfair gain to the individual;
(D) Whether recovery of the claim would be unconscionable under the circumstances.
(7) Overpayments of Foreign Service annuities. For waiver of debts arising from overpayments from the Foreign Service Retirement and Disability Fund under the Foreign Service Retirement and Disability System or the Foreign Service Pension System see 22 CFR part 17.
(8) As otherwise provided by law.
(c) Waiver of indebtedness is an equitable remedy and as such must be based on an assessment of the facts involved in the individual case under consideration.
(d) The burden is on the employee to demonstrate that the applicable waiver standard has been met.
(e) Requests. A debtor requesting a waiver shall do so in writing to the contact office by the payment due date stated within the initial notice sent under § 34.8(b) or other applicable provision. The debtor’s written response shall state the basis for the dispute and include any relevant documentation in support.
(f) While a waiver request is pending, STATE may suspend collection, including the accrual of interest and penalties, on the debt if STATE determines that suspension is in the Department’s best interest or would serve equity and good conscience.
§ 34.19 Compromise.
STATE may attempt to effect compromise in accordance with the standards set forth in the FCCS, 31 CFR part 902.
§ 34.20 Suspension.
The suspension of collection action shall be made in accordance with the standards set forth in the FCCS, 31 CFR 903.1-903.2
§ 34.21 Termination.
The termination of collection action shall be made in accordance with the standards set forth in the FCCS, 31 CFR 903.1 and 903.3-903.4.
§ 34.22 Discharge.
Once a debt has been closed out for accounting purposes and collection has been terminated, the debt is discharged. STATE must report discharged debt as income to the debtor to the Internal Revenue Service per 26 U.S.C. 6050P and 26 CFR 1.6050P-1.
§ 34.23 Bankruptcy.
A debtor should notify STATE at the contact office provided in the original notice of the debt, if the debtor has filed for bankruptcy. STATE will require documentation from the applicable court indicating the date of filing and type of bankruptcy. Pursuant to the laws of bankruptcy, STATE will suspend debt collection upon such filing unless the automatic stay is no longer in effect or has been lifted. In general, collection of a debt discharged in bankruptcy shall be terminated unless otherwise provided for by bankruptcy law.
§ 34.24 Refunds.
(a) STATE will refund promptly to the appropriate individual amounts offset under this regulation when:
(1) A debt is waived or otherwise found not owing the United States (unless expressly prohibited by statute or regulation); or
(2) STATE is directed by an administrative or judicial order to make a refund.
(b) Refunds do not bear interest unless required or permitted by law or contract.
PART 35 – PROGRAM FRAUD CIVIL REMEDIES
§ 35.1 General.
(a) Basis. This part implements the Program Fraud Civil Remedies Act of 1986, Public Law 99-509, sections. 6101-6104, 100 Stat. 1874 (October 21, 1986), codified at 31 U.S.C. 3801-3812. 31 U.S.C. 3809 of the statute requires each authority head to promulgate regulations necessary to implement the provisions of the statute.
(b) Purpose. This part establishes administrative procedures for imposing civil penalties and assessments against persons who make, submit, or present, or cause to be made, submitted, or presented, false fictitious, or fraudulent claims or written statements to authorities or to their agents; and specifies the hearing and appeal rights of persons subject to allegations of liability for such penalties and assessments.
(c) Special considerations abroad. Where a party, witness or material evidence in a proceeding under these regulations is located abroad, the investigating official, reviewing official or ALJ, as the case may be, may adjust the provisions below for service, filing of documents, time limitations, and related matters to meet special problems arising out of that location.
§ 35.2 Definitions.
(a) ALJ means an Administrative Law Judge in the authority appointed pursuant to 5 U.S.C. 3105 or detailed to the authority pursuant to 5 U.S.C. 3344.
(b) Authority means the United States Department of State.
(c) Authority head means the Under Secretary for Management.
(d) Benefit means, in the context of “statement,” anything of value, including but not limited to, any advantage, preference, privilege, license, permit, favorable decision, ruling, status, or loan gurarantee.
(e) Claim means any request, demand, or submission –
(1) Made to the authority for property, services, or money (including money representing grants, loans, insurance, or benefits);
(2) Made to a recipient of property, services, or money from the authority or to a party to a contract with the authority –
(i) For property or services if the United States –
(A) Provided such property or services;
(B) Provided any portion of the funds for the purchase of such property or services; or
(C) Will reimburse such recipient or party for the purchase of such property or services; or
(ii) For the payment of money (including money representing grants, loans, insurance or benefits) if the United States –
(A) Provided any portion of the money requested or demanded; or
(B) Will reimburse such recipient or party for any portion of the money paid on such request or demand; or
(3) Made to the authority which has the effect of decreasing an obligation to pay or account for property, services or money.
(f) Complaint means the administrative complaint served by the reviewing official on the defendant under § 35.7.
(g) Defendant means any person alleged in a complaint under § 35.7 to be liable for a civil penalty or assessment under § 35.3.
(h) Department means the Department of State.
(i) Government means the United States Government.
(j) Individual means a natural person.
(k) Initial decision means the written decision of the ALJ required by § 35.10 or § 35.37, and includes a revised initial decision issued following a remand or a motion for reconsideration.
(l) Investigating official means the Inspector General of the Department of State or an officer or employee of the Office of Inspector General designated by the Inspector General and serving in a position for which the rate of basic pay is not less than the minimum rate of basic pay for grade GS-16 under the General Schedule.
(m) Knows or has reason to know means that a person, with respect to a claim or statement –
(1) Has actual knowledge that the claim or statement is false, fictitious, or fraudulent;
(2) Acts in deliberate ignorance of the truth or falsity of the claim or statement; or
(3) Acts in reckless disregard of the truth or falsity of the claim or statement.
(n) Makes, wherever it appears, shall include the terms presents, submits, and causes to be made, presented, or submitted. As the context requires, making or made, shall likewise include the corresponding forms of such terms.
(o) Person means any individual, partnership, corporation, association or private organization, and includes the plural of the term.
(p) Representative means an attorney who is a member in good standing of the bar of any state, territory, or possession of the United States, or of the District of Columbia, or the Commonwealth of Puerto Rico.
(q) Representative for the Authority means the Counsel to the Inspector General.
(r) Reviewing official means the Assistant Legal Adviser for Buildings and Acquisitions or her or his designee who is –
(1) Not subject to supervision by, or required to report to, the investigating official;
(2) Not employed in the organizational unit of the authority in which the investigating official is employed; and
(3) Serving in a position for which the rate of basic pay is not less than the minimum rate of basic pay for grade GS-16 under the General Schedule.
(s) Statement means any representation, certification, affirmation, document, record, or accounting or bookkeeping entry made –
(1) With respect to a claim or to obtain the approval or payment of a claim (including relating to eligibility to make a claim); or
(2) With respect to (including relating to eligibility for) –
(i) A contract with, or a bid or proposal for a contract with; or
(ii) A grant, loan or benefit from, the authority, or any state, political subdivision of a state, or other party, if the United States Government provides any portion of the money or property under such contract or for such grant, loan, or benefit, or if the Government will reimburse such state, political subdivision, or party for any portion of the money or property under such contract or for such grant, loan, or benefit.
§ 35.3 Basis for civil penalties and assessments.
(a) Claims. (1) Except as provided in paragraph (c) of this section, any person who makes a claim that the person knows or has reason to know the following shall be subject, in addition to any other remedy that may be prescribed by law, to a civil penalty of not more than $13,508 for each such claim:
(i) Is false, fictitious, or fraudulent;
(ii) Includes or is supported by any written statement which asserts a material fact which is false, fictitious, or fraudulent;
(iii) Includes or is supported by any written statement that –
(A) Omits a material fact;
(B) Is false, fictitious, or fraudulent as a result of such omission; and
(C) Is a statement in which the person making the statement has a duty to include such material fact; or
(iv) Is for payment for the provision of property or services which the person has not provided as claimed.
(2) Each voucher, invoice, claim form, or other individual request or demand for property, services, or money constitutes a separate claim.
(3) A claim shall be considered made to the authority, recipient, or party when such claim is actually made to an agent, fiscal intermediary, or other entity, including any state or political subdivision thereof, acting for or on behalf of the authority, recipient, or party.
(4) Each claim for property, services, or money is subject to a civil penalty regardless of whether such property, services, or money is actually delivered or paid.
(5) If the Government has made any payment (including transferred property or provided services) on a claim, a person subject to a civil penalty under paragraph (a)(1) of this section shall also be subject to an assessment of not more than twice the amount of such claim or that portion thereof that is determined to be in violation of paragraph (a)(1) of this section. Such assessment shall be in lieu of damages sustained by the Government because of such claim.
(b) Statements. (1) Except as provided in paragraph (c) of this section, any person who makes a written statement that –
(i) The person knows or has reason to know –
(A) Asserts a material fact which is false, fictitious, or fraudulent; or
(B) Is false, fictitious, or fraudulent because it omits a material fact that the person making the statment has a duty to include in such statement; and
(ii) Contains or is accompanied by an express certification or affirmation of the truthfulness and accuracy of the contents of the statement, shall be subject, in addition to any other remedy that may be prescribed by law, to a civil penalty of not more than $13,508 for each such statement.
(2) Each written representation, certification, or affirmation constitutes a separate statement.
(3) A statement shall be considered made to the authority when such statement is actually made to an agent, fiscal intermediary, or other entity, including any state or political subdivision thereof, acting for or on behalf of the authority.
(c) No proof of specific intent to defraud is required to establish liability under this section.
(d) In any case in which it is determined that more than one person is liable for making a claim or statement under this section, each such person may be held liable for a civil penalty under this section.
(e) In any case in which it is determined that more than one person is liable for making a claim under this section on which the Government has made payment (including transferred property or provided services), an assessment may be imposed against any such person or jointly and severally against any combination of such persons.
(f) The maximum penalty for each false claim or statement is $13,508, up to a maximum of $405,270.
§ 35.4 Investigation.
(a) If an investigating official concludes that a subpoena pursuant to the authority conferred by 31 U.S.C. 3804(a) is warranted –
(1) The subpoena so issued shall notify the person to whom it is addressed of the authority under which the subpoena is issued (and, in the case of a subpoena to be served outside the jurisdiction of the United States, the basis for such service), and shall identify the records or documents sought;
(2) The investigating official may designate a person to act on his or her behalf to receive the documents sought; and
(3) The person receiving such subpoena shall be required to tender to the investigating official or the person designated to receive the documents a certification that the documents sought have been produced, or that such documents are not available and the reasons therefore, or that such documents, suitably identified, have been withheld based upon the assertion of an identified privilege.
(b) If the investigating official concludes that an action under the Program Fraud Civil Remedies Act may be warranted, the investigating official shall submit a report containing the findings and conclusions of such investigation to the reviewing official.
(c) Nothing in this section shall preclude or limit an investigating official’s discretion to refer allegations directly to the Department of Justice for suit under the False Claims Act or other civil relief, or to preclude or limit such official’s discretion to defer or postpone a report or referral to the reviewing official to avoid interference with a criminal investigation or prosecution.
(d) Nothing in this section modifies any responsibility of an investigating official to report violations of criminal law to the Attorney General.
§ 35.5 Review by the reviewing official.
(a) If, based on the report of the investigating official under § 35.4(b), the reviewing official determines that there is adequate evidence to believe that a person is liable under § 35.3 of this part, the reviewing official shall transmit to the Attorney General a written notice of the reviewing official’s intention to issue a complaint under § 35.7.
(b) Such notice shall include –
(1) A statement of the reviewing official’s reasons for issuing a complaint;
(2) A statement specifying the evidence that supports the allegations of liability;
(3) A description of the claims or statements upon which the allegations of liability are based;
(4) An estimate of the amount of money or the value of property, services, or other benefits requested or demanded in violation of § 35.3;
(5) A statement of any exculpatory or mitigating circumstances that may relate to the claims or statements known by the reviewing official or the investigating official; and
(6) A statement that there is a reasonable prospect of collecting an appropriate amount of penalties and assessments.
§ 35.6 Prerequisites for issuing a complaint.
(a) The reviewing official may issue a complaint under § 35.7 only if –
(1) The Department of Justice approves the issuance of a complaint in a written statement described in 31 U.S.C. 3803(b)(1); and
(2) In the case of allegations of liability under § 35.3(a) with respect to a claim, the reviewing official determines that, with respect to such claim or a group of related claims submitted at the same time such claim is submitted (as defined in paragraph (b) of this section), the amount of money or the value of property or services demanded or requested in violation of § 35.3(a) does not exceed $150,000.
(b) For purposes of this section, a related group of claims submitted at the same time shall include only those claims arising from the same transaction (e.g., grant, loan, application, or contract) that are submitted simultaneously as part of a single request, demand or submission.
(c) Nothing in this section shall be construed to limit the reviewing official’s authority to join in a single complaint against a person’s claims that are unrelated or were not submitted simultaneously, regardless of the amount of money, or the value of property or services, demanded or requested.
§ 35.7 Complaint.
(a) On or after the date the Department of Justice approves the issuance of a complaint in accordance with 31 U.S.C. 3803(b)(1), the reviewing official may serve a complaint on the defendant, as provided in § 35.8.
(b) The complaint shall state –
(1) The allegations of liability against the defendant, including the statutory basis for liability, an identification of the claims or statements that are the basis for the alleged liability, and the reasons why liability allegedly arises from such claims or statements;
(2) The maximum amount of penalties and assessments for which the defendant may be held liable;
(3) Instructions for filing an answer to request a hearing, including a specific statement of the defendant’s right to request a hearing by filing an answer and to be represented by a representative; and
(4) That failure to file an answer within 30 days of service of the complaint will result in the imposition of the maximum amount of penalties and assessments without right to appeal, as provided in § 35.10.
(c) At the same time the reviewing official serves the complaint, he or she shall serve the defendant with a copy of these regulations.
§ 35.8 Service of complaint.
(a) Service of a complaint must be made by certified or registered mail or by delivery in any manner authorized by Rule 4(d) of the Federal Rules of Civil Procedure. Service is complete upon receipt.
(b) Proof of service, stating the name and address of the person on whom the complaint was served, and the manner and date of service, may be made by –
(1) Affidavit of the individual serving the complaint by delivery;
(2) A United States Postal Service return receipt card acknowledging receipt;
(3) Written acknowledgment of receipt by the defendant or his or her representative; or
(4) In case of service abroad authenticated in accordance with the Convention on the Service Abroad of Judicial and Extra Judicial Documents in Civil or Commercial Matters.
§ 35.9 Answer.
(a) The defendant may request a hearing by filing an answer with the reviewing official within 30 days of service of the complaint. An answer shall be deemed to be a request for hearing.
(b) In the answer, the defendant –
(1) Shall admit or deny each of the allegations of liability made in the complaint;
(2) Shall state any defense on which the defendant intends to rely;
(3) May state any reasons why the defendant contends that the penalties and assessments should be less than the statutory maximum; and
(4) Shall state the name, address and telephone number of the person authorized by the defendant to act as defendant’s representative, if any.
(c) If the defendant is unable to file an answer meeting the requirements of paragraph (b) of this section within the time provided, the defendant may, before the expiration of 30 days from service of the complaint, file with the reviewing official a general answer denying liability and requesting a hearing, and a request for an extension of time within which to file an answer meeting the requirements of paragraph (b) of this section. The reviewing official shall file promptly with the ALJ the complaint, the general answer denying liability, and the request for an extension of time as provided in § 35.10. For good cause shown, the ALJ may grant the defendant up to 30 additional days within which to file an answer meeting the requirements of paragraph (b) of this section.
§ 35.10 Default upon failure to file an answer.
(a) If the defendant does not file an answer within the time prescribed in § 35.9(a), the reviewing official may refer the complaint to the ALJ.
(b) Upon the referral of the complaint, the ALJ shall promptly serve on defendant in the manner prescribed in § 35.8, a notice that an initial decision will be issued under this section.
(c) If the defendant fails to answer, the ALJ shall assume the facts alleged in the complaint to be true, and, if such facts established liability under § 35.3, the ALJ shall issue an initial decision imposing the maximum amount of penalties and assessments allowed under the statute.
(d) Except as otherwise provided in this section, by failing to file a timely answer, the defendant waives any right to further review of the penalties and assessments imposed under paragraph (c) of this section, and the initial decision shall become final and binding upon the parties 30 days after it was issued.
(e) If, before such an initial decision becomes final, the defendant files a motion with the ALJ seeking to reopen on the grounds that extraordinary circumstances prevented the defendant from filing an answer, the initial decision shall be stayed pending the ALJ’s decision on the motion.
(f) If, on such motion, the defendant can demonstrate extraordinary circumstances excusing the failure to file a timely answer, the ALJ shall withdraw the initial decision in paragraph (c) of this section, if such a decision has been issued, and shall grant the defendant an opportunity to answer the complaint.
(g) A decision of the ALJ denying a defendant’s motion under paragraph (e) of this section is not subject to reconsideration under § 35.38.
(h) The defendant may appeal to the authority head the decision denying a motion to reopen by filing a notice of appeal with the authority head within 15 days after the ALJ denies the motion. The timely filing of a notice of appeal shall stay the initial decision until the authority head decides the issue.
(i) If the defendant files a timely notice of appeal with the authority head, the ALJ shall forward the record of the proceeding to the authority head.
(j) The authority head shall decide expeditiously whether extraordinary circumstances excuse the defendant’s failure to file a timely answer based solely on the record before the ALJ.
(k) If the authority head decides that extraordinary circumstances excused the defendant’s failure to file a timely answer, the authority head shall remand the case to the ALJ with instructions to grant the defendant an opportunity to answer.
(l) If the authority head decides that the defendant’s failure to file a timely answer is not excused, the authority head shall reinstate the initial decision of the ALJ, which shall become final and binding upon the parties 30 days after the authority head issues such decision.
§ 35.11 Referral of complaint and answer to the ALJ.
Upon receipt of an answer, the reviewing official shall file the complaint and answer with the ALJ.
§ 35.12 Notice of hearing.
(a) When the ALJ receives the complaint and answer, the ALJ shall promptly serve a notice of hearing upon the defendant in the manner prescribed by § 35.8. At the same time, the ALJ shall send a copy of such notice to the representative for the Authority.
(b) Such notice shall include –
(1) The tentative time and place, and the nature of the hearing;
(2) The legal authority and jurisdiction under which the hearing is to be held;
(3) The matters of fact and law to be asserted;
(4) A description of the procedures for the conduct of the hearing;
(5) The name, address, and telephone number of the representative of the Government and of the defendant, if any; and
(6) Such other matters as the ALJ deems appropriate.
§ 35.13 Parties to the hearing.
(a) The parties to the hearing shall be the defendant and the Authority.
(b) Pursuant to 31 U.S.C. 3730(c)(5), a private plaintiff under the False Claims Act may participate in these proceedings to the extent authorized by the provisions of that Act.
§ 35.14 Separation of functions.
(a) The investigating official, the reviewing official, and any employee or agent of the authority who takes part in investigating, preparing, or presenting a particular case may not, in such case or a factually related case –
(1) Participate in the hearing as the ALJ;
(2) Participate or advise in the initial decision or the review of the initial decision by the authority head, except as a witness or a representative in public proceedings; or
(3) Make the collection of penalties and assessments under 31 U.S.C. 3806.
(b) The ALJ shall not be responsible to, or subject to the supervision or direction of the investigating official or the reviewing official.
(c) Except as provided in paragraph (a) of this section, the representative for the Government may be employed anywhere in the authority, including in the offices of either the investigating official or the reviewing official.
§ 35.15 Ex parte contacts.
No party or person (except employees of the ALJ’s office) shall communicate in any way with the ALJ on any matter at issue in a case, unless on notice and opportunity for all parties to participate. This provision does not prohibit a person or party from inquiring about the status of a case or asking routine questions concerning administrative functions or procedures.
§ 35.16 Disqualification of reviewing official or ALJ.
(a) A reviewing official or ALJ in a particular case may disqualify herself or himself at any time.
(b) A party may file with the ALJ a motion for disqualification of a reviewing official or an ALJ. Such motion shall be accompanied by an affidavit alleging personal bias or other reason for disqualification.
(c) Such motion and affidavit shall be filed promptly upon the party’s discovery of reasons requiring disqualification, or such objects shall be deemed waived
(d) Such affidavit shall state specific facts that support the party’s belief that personal bias or other reason for disqualification exists and the time and circumstances of the party’s discovery of such facts. It shall be accompanied by a certificate of the representative of record that it is made in good faith.
(e) Upon the filing of such a motion and affidavit, the ALJ shall proceed no further in the case until he or she resolves the matter of disqualification in accordance with paragraph (f) of this section.
(f) If the ALJ –
(1) Determines that a reviewing official is disqualified, the ALJ shall dismiss the complaint without prejudice;
(2) Disqualifies himself or herself, the case shall be reassigned promptly to another ALJ; or
(3) Denies a motion to disqualify, the authority head may determine the mater only as part of his or her review of the initial decision upon appeal, if any.
§ 35.17 Rights of parties.
Except as otherwise limited by this part, all parties may –
(a) Be accompanied, represented, and advised by a representative;
(b) Participate in any conference held by the ALJ;
(c) Conduct discovery;
(d) Agree to stipulations of fact or law, which shall be made part of the record;
(e) Present evidence relevant to the issues at the hearing;
(f) Present and cross-examine witnesses;
(g) Present oreal arguments at the hearing as permitted by the ALJ; and
(h) Submit written briefs and proposed findings of fact and conclusions of law after the hearing.
§ 35.18 Authority of the ALJ.
(a) The ALJ shall conduct a fair and impartial hearing, avoid delay, maintain order, and assure that a record of the proceeding is made.
(b) The ALJ has the authority to –
(1) Set and change the date, time, and place of the hearing upon reasonable notice to the parties;
(2) Continue or recess the hearing in whole or in part for a reasonable period of time;
(3) Hold conferences to identify or simplify the issues, or to consider other matters that may aid in the expeditious disposition of the proceeding;
(4) Administer oaths and affirmations;
(5) Issue subpoenas to be served within the United States requiring the attendance of witnesses and the production of documents at depositions or at hearings. Subpoenas to be served outside the jurisdiction of the United States shall state on their face the authority therefore;
(6) Rule on motions and other procedural matters;
(7) Regulate the scope and timing of discovery;
(8) Regulate the course of the hearing and the conduct of representatives and parties;
(9) Examine witnesses;
(10) Receive, rule on, exclude, or limit evidence;
(11) Upon motion of a party, take official notice of facts;
(12) Upon motion of a party, decide cases, in whole or in part, by summary judgment where there is no disputed issue of material fact;
(13) Conduct any conference, argument, or hearing on motions in person or by telephone; and
(14) Exercise such other authority as is necessary to carry out the responsibilities of the ALJ under this part.
(c) The ALJ does not have the authority to find treaties and other international agreements or federal statutes or regulations invalid.
§ 35.19 Prehearing conferences.
(a) The ALJ may schedule prehearing conferences as appropriate.
(b) Upon the motion of any party, the ALJ shall schedule at least one prehearing conference at a reasonable time in advance of the hearing.
(c) The ALJ may use prehearing conferences to discuss the following:
(1) Simplification of the issues;
(2) The necessity or desirability of amendments to the pleadings, including the need for a more definite statement;
(3) Stipulations and admissions of fact or as to the contents and authenticity of documents;
(4) Whether the parties can agree to submission of the case on a stipulated record;
(5) Whether a party chooses to waive appearance at an oral hearing and to submit only documentary evidence (subject to the objection of other parties) and written argument;
(6) Limitation of the number of witnesses;
(7) Scheduling dates for the exchange of witness lists and of proposed exhibits;
(8) Discovery;
(9) The time and place for the hearing; and
(10) Such other matters as may tend to expedite the fair and just disposition of the proceedings.
(d) The ALJ may issue an order containing all matters agreed upon by the parties or ordered by the ALJ at a prehearing conference.
§ 35.20 Disclosure of documents.
(a) Upon written request to the reviewing official, the defendant may review any relevant and material documents, transcripts, records, and other materials that relate to the allegations set out in the complaint and upon which the findings and conclusions of the investigating official under § 35.4(b) are based, unless such materials are subject to a privilege under federal law or classified pursuant to Executive Order. Upon payment of fees for duplication, the defendant may obtain copies of such documents.
(b) Upon written request to the reviewing official, the defendant also may obtain a copy of all exculpatory information in the possession of the reviewing official or investigating official relating to the allegations in the complaint, even if it is contained in a document that would otherwise be privileged. If the document would otherwise be privileged, only that portion containing exculpatory information must be disclosed.
(c) The notice sent to the Attorney General from the reviewing official as described in § 35.5 is not discoverable under any circumstances.
(d) The defendant may file a motion to compel disclosure of the documents subject to the provisions of this section. Such a motion may only be filed with the ALJ following the filing of an answer pursuant to § 35.9.
§ 35.21 Discovery.
(a) The following types of discovery are authorized:
(1) Requests for production of documents for inspection and copying;
(2) Requests for admissions of the authenticity of any relevant document or of the truth of any relevant fact;
(3) Written interrogatories; and
(4) Depositions.
(b) For the purpose of this section and §§ 35.22 and 35.23, the term “documents” includes information, documents, reports, answers, records, accounts, papers, and other data and documentary evidence. Nothing contained herein shall be interpreted to require the creation of a document.
(c) Unless mutually agreed to by the parties, discovery is available only as ordered by the ALJ. The ALJ shall regulate the timing of discovery.
(d) Motions for discovery. (1) A party seeking discovery may file a motion with the ALJ. Such a motion shall be accompanied by a copy of the requested discovery, or in the case of depositions, a summary of the scope of the proposed deposition.
(2) Within ten days of service, a party may file an opposition to the motion and/or a motion for protective order as provided in § 35.24.
(3) The ALJ may grant a motion for discovery only if he finds that the discovery sought –
(i) Is necessary for the expeditious, fair, and reasonable consideration of the issues;
(ii) Is not unduly costly or burdensome;
(iii) Will not unduly delay the proceeding; and
(iv) Does not seek privileged or classified information.
(4) The burden of showing that discovery should be allowed is on the party seeking discovery.
(5) The ALJ may grant discovery subject to a protective order under § 35.24.
(e) Depositions. (1) If a motion for deposition is granted, the ALJ shall issue a subpoena for the deponent, which may require the deponent to produce documents. The subpoena shall specify the time and place at which the deposition will be held.
(2) The party seeking to depose shall serve the subpoena in the manner prescribed in § 35.8.
(3) The deponent may file with the ALJ a motion to quash the subpoena or a motion for a protective order within ten days of service.
(4) The party seeking to depose shall provide for the taking of a verbatim transcript of the deposition, which it shall make available to all other parties for inspection and copying.
(f) Each party shall bear its own costs of discovery.
§ 35.22 Exchange of witness lists, statements and exhibits.
(a) At least 15 days before the hearing or at such other time as may be ordered by the ALJ, the parties shall exchange witness lists, copies of prior statements of proposed witnesses, and copies of proposed hearing exhibits, including copies of any written statements that the party intends to offer in lieu of live testimony in accordance with § 35.33(b). At the time the above documents are exchanged, any party that intends to rely on the transcript of deposition testimony in lieu of live testimony at the hearing, if permitted by the ALJ, shall provide each party with a copy of the specific pages of the transcript it intends to introduce into evidence.
(b) If a party objects, the ALJ shall not admit into evidence the testimony of any witness whose name does not appear on the witness list or any exhibit not provided to the opposing party as provided above unless the ALJ finds good cause for the failure or that there is no prejudice to the objecting party.
(c) Unless another party objects within the time set by the ALJ, documents exchanged in accordance with paragraph (a) of this section shall be deemed to be authentic for the purpose of admissibility at the hearing.
§ 35.23 Subpoenas for attendance at hearing.
(a) A party wishing to procure the appearance and testimony of any individual at the hearing may request that the ALJ issue a subpoena.
(b) A subpoena requiring the attendance and testimony of an individual may also require the individual to produce documents at the hearing.
(c) A party seeking a subpoena shall file a written request therefor not less than 15 days before the day fixed for the hearing unless otherwise allowed by the ALJ for good cause shown. Such request shall specify any documents to be produced and shall designate the witnesses and describe the address and location thereof with sufficient particularity to permit such witnesses to be found.
(d) The subpoena shall specify the time and place at which the witness is to appear and any documents the witness is to produce.
(e) The party seeking the subpoena shall serve it in the manner prescribed in § 35.8. A subpoena on a party or upon an individual under the control of a party may be served within the United States by first class mail.
(f) A party or the individual to whom the subpoena is directed may file with the ALJ a motion to quash the subpoena within ten days after service or on or before the time specified in the subpoena for compliance if it is less than ten days after service.
§ 35.24 Protective order.
(a) A party or a prospective witness or deponent may file a motion for a protective order with respect to discovery sought by an opposing party or with respect to the hearing, seeking to limit the availability or disclosure of evidence.
(b) In issuing a protective order, the ALJ may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:
(1) That the discovery not be had;
(2) That the discovery may be had only on specified terms and conditions, including a designation of the time or place;
(3) That the discovery may be had only through a method of discovery other than that requested;
(4) That certain matters not be inquired into, or that the scope of discovery be limited to certain matters;
(5) That discovery be conducted with no one present except persons designated by the ALJ;
(6) That the contents of discovery or evidence be sealed;
(7) That a deposition after being sealed be opened only by order of the ALJ;
(8) That a trade secret or other confidential research, development, commercial information, classified material, or facts pertaining to any criminal investigation, proceeding, or other administrative investigation not be disclosed or be disclosed only in a designated way; or
(9) That the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the ALJ.
§ 35.25 Fees.
The party requesting a subpoena shall pay the cost of the fees and mileage of any witness subpoenaed in the amounts that would be payable to a witness in a proceeding in United States District Court. A check for witness fees and mileage shall accompany the subpoena when served, except that when a subpoena is issued on behalf of the authority, a check for witness fees and mileage need not accompany the subpoena.
§ 35.26 Form, filing and service of papers.
(a) Form. (1) Documents filed with the ALJ shall include an original and two copies.
(2) Every pleading and paper filed in the proceeding shall contain a caption setting forth the title of the action, the case number assigned by the ALJ, a designation of the paper (e.g., motion to quash subpoena), and shall be in English or accompanied by an English translation.
(3) Every pleading and paper shall be signed by, and shall contain the address and telephone number of the party or the person on whose behalf the paper was filed, or his or her representative.
(4) Papers are considered filed when they are mailed. Date of mailing may be established by a certificate from the party or its representative or by proof that the document was sent by certified or registered mail.
(b) Service. A party filing a document with the ALJ shall, at the time of filing, serve a copy of such document on every other party. Service upon any party of any document other than the complaint or notice of hearing, shall be made by delivering or mailing a copy to the party’s last known address. When a party is represented by a representative, service shall be made upon such representative in lieu of the actual party.
(c) Proof of service. A certificate of the individual serving the document by personal delivery or by mail, setting forth the manner of service, shall be proof of service.
§ 35.27 Computation of time.
(a) In computing any period of time under this part or in an order issued thereunder, the time begins with the day following the act, event, or default, and includes the last day of the period, unless it is a Saturday, Sunday, or legal holiday observed by the Federal Government, in which event it includes the next business day.
(b) When the period of time allowed is less than seven days, intermediate Saturdays, Sundays, and legal holidays observed by the Federal Government shall be excluded from the computation.
(c) Where a document has been served or issued by mail, or by airmail abroad, an additional five days will be added to the time permitted for any response.
§ 35.28 Motions.
(a) Any application to the ALJ for an order or ruling shall be by motion. Motions shall state the relief sought, the authority relied upon, and the facts alleged, and shall be filed with the ALJ and served on all other parties.
(b) Except for motions made during a prehearing conference or at the hearing, all motions shall be in writing. The ALJ may require that oral motions be reduced to writing.
(c) Within 15 days after a written motion is served, or such other time as may be fixed by the ALJ, any party may file a response to such motion.
(d) The ALJ may not grant a written motion before the time for filing responses thereto has expired, except upon consent of the parties or following a hearing on the motion, but may overrule or deny such motion without awaiting a response.
(e) The ALJ shall make a reasonable effort to dispose of all outstanding motions prior to the beginning of the hearing.
§ 35.29 Sanctions.
(a) The ALJ may sanction a person, including any party or representative for –
(1) Failing to comply with an order, rule, or procedure governing the proceeding;
(2) Failing to prosecute or defend an action; or
(3) Engaging in other misconduct that interferes with the speedy, orderly, or fair conduct of the hearing.
(b) Any such sanction, including but not limited to those listed in paragraphs (c), (d), and (e) of this section, shall reasonably relate to the severity and nature of the failure or misconduct.
(c) When a party fails to comply with an order, including an order for taking a deposition, the production of evidence within the party’s control, or a request for admission, the ALJ may –
(1) Draw an inference in favor of the requesting party with regard to the information sought;
(2) In the case of requests for admission, deem each matter of which an admission is requested to be admitted;
(3) Prohibit the party failing to comply with such order from introducing evidence concerning, or otherwise relying upon, testimony relating to the information sought; and
(4) Strike any part of the pleadings or other submissions of the party failing to comply with such request.
(d) If a party fails to prosecute or defend an action under this part commenced by service of a notice of hearing, the ALJ may dismiss the action or may issue an initial decision imposing penalties and assessments.
(e) The ALJ may refuse to consider any motion, request, response, brief or other document which is not filed in a timely fashion.
§ 35.30 The hearing and burden of proof.
(a) The ALJ shall conduct a hearing on the record in order to determine whether the defendant is liable for a civil penalty or assessment under § 35.3 and, if so, the appropriate amount of any such civil penalty or assessment considering any aggravating or mitigating factors.
(b) The authority shall prove defendant’s liability and any aggravating factors by a preponderance of the evidence.
(c) The defendant shall prove any affirmative defenses and any mitigating factors by a preponderance of the evidence.
(d) The hearing shall be open to the public unless otherwise ordered by the ALJ for good cause shown.
§ 35.31 Determining the amount of penalties and assessments.
(a) In determining an appropriate amount of civil penalties and assessments, the ALJ and the authority head, upon appeal, should evaluate any circumstances that mitigate or aggravate the violation and should articulate in their opinions the reasons that support the penalties and assessments they impose. Because of the intangible costs of fraud, the expense of investigating such conduct, and the need to deter others who might be similarly tempted, ordinarily double damages and a significant civil penalty should be imposed.
(b) Although not exhaustive, the following factors are among those that may influence the ALJ and the authority head in determining the amount of penalties and assessments to impose with respect to the misconduct (i.e., the false, fictitious, or fraudulent claims or statements) charged in the complaint:
(1) The number of false, fictitious, or fraudulent claims or statements;
(2) The time period over which such claims or statements were made;
(3) The degree of the defendant’s culpability with respect to the misconduct;
(4) The amount of money or the value of the property, services, or benefit falsely claimed;
(5) The value of the Government’s actual loss as a result of the misconduct, including foreseeable consequential damages and the costs of investigation;
(6) The relationship of the amount imposed as civil penalties to the amount of the Government’s loss;
(7) The potential or actual impact of the misconduct upon national defense, public health or safety, or public confidence in the management of government programs and operations, including particularly the impact on the intended beneficiaries of such programs;
(8) Whether the defendant has engaged in a pattern of the same or similar misconduct;
(9) Whether the defendant attempted to conceal the misconduct;
(10) The degree to which the defendant has involved others in the misconduct or in concealing it;
(11) Where the misconduct of employees or agents is imputed to the defendant, the extent to which the defendant’s practices fostered or attempted to preclude such misconduct;
(12) Whether the defendant cooperated in or obstructed an investigation of the misconduct;
(13) Whether the defendant assisted in identifying and prosecuting other wrongdoers;
(14) The complexity of the program or transaction, and the degree of the defendant’s sophistication with respect to it, including the extent of the defendant’s prior participation in the program or in similar transactions;
(15) Whether the defendant has been found, in any criminal, civil, or administrative proceeding to have engaged in similar misconduct or to have dealt dishonestly with the Government of the United States or of a state, directly or indirectly; and
(16) The need to deter the defendant and others from engaging in the same or similar misconduct.
(c) Nothing in this section shall be construed to limit the ALJ or the authority head from considering any other factors that in any given case may mitigate or aggravate the offense for which penalties and assessments are imposed.
§ 35.32 Location of hearing.
(a) The hearing may be held –
(1) In any judicial district of the United States in which the defendant resides or transacts business;
(2) In any judicial district of the United States in which the claim or statement in issue was made; or
(3) In such other place within the United States as may be agreed upon by the defendant and the ALJ.
(b) Each party shall have the opportunity to present argument with respect to the location of the hearing.
(c) The hearing shall be held at the place and at the time ordered by the ALJ.
§ 35.33 Witnesses.
(a) Except as provided in paragraph (b) of this section, testimony at the hearing shall be given orally by witnesses under oath or affirmation.
(b) At the discretion of the ALJ, testimony may be admitted in the form of a written statement or deposition. Any such written statement must be provided to all other parties along with the last known address of such witness, in a manner which allows sufficient time for other parties to subpoena such witness for cross-examination at the hearing. Prior written statements of witnesses proposed to testify at the hearing and deposition transcripts shall be exchanged as provided in § 35.22(a).
(c) The ALJ shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence in order to make –
(1) The interrogation and presentation effective for the ascertainment of the truth;
(2) To avoid needless consumption of time; and
(3) To protect witnesses from harassment or undue embarrassment.
(d) The ALJ shall permit the parties to conduct such cross-examination as may be required for a full and true disclosure of the facts.
(e) At the discretion of the ALJ, a witness may be cross-examined on matters relevant to the proceeding without regard to the scope of his or her direct examination. To the extent permitted by the ALJ, cross-examination on matters outside the scope of direct examination shall be conducted in the manner of direct examination and may proceed by leading questions only if the witness is a hostile witness, an adverse party, or a witness identified with an adverse party.
(f) Upon motion of any party, the ALJ shall order witnesses excluded so that they cannot hear the testimony of other witnesses. This rule does not authorize exclusion of –
(1) A party who is an individual;
(2) In the case of a party that is not an individual, an officer or employee of the party designated by the party’s representative; or
(3) An individual whose presence is shown by a party to be essential to the presentation of its case, including an individual employed by the Government engaged in assisting the representative for the Government.
§ 35.34 Evidence.
(a) The ALJ shall determine the admissibility of evidence.
(b) Except as provided herein, the ALJ shall not be bound by the Federal Rules of Evidence. However, the ALJ may apply the Federal Rules of Evidence where appropriate, e.g., to exclude unreliable evidence.
(c) The ALJ shall exclude irrelevant and immaterial evidence.
(d) Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or by considerations of undue delay or needless presentation of cumulative evidence.
(e) Although relevant, evidence may be excluded if it is classified or otherwise privileged under Federal law.
(f) Evidence concerning offers or compromise or settlement shall be inadmissible to the extent provided in Rule 408 of the Federal Rules of Evidence.
(g) The ALJ shall permit the parties to introduce rebuttal witnesses and evidence.
(h) All documents and other evidence offered or taken for the record shall be open to examination by all parties, unless otherwise ordered by the ALJ pursuant to § 35.24.
§ 35.35 The record.
(a) The hearing will be recorded and transcribed. Transcripts may be obtained following the hearing from the ALJ at a cost not to exceed the actual cost of duplication.
(b) The transcript of testimony, exhibits and other evidence admitted at the hearing, and all papers and requests filed in the proceeding constitute the record for the decision by the ALJ and the authority head.
(c) The record may be inspected and copied (upon payment of a reasonable fee) by anyone, unless otherwise ordered by the ALJ pursuant to § 35.24.
§ 35.36 Post-hearing briefs.
The ALJ may require the parties to file post-hearing briefs. In any event, any party may file a post-hearing brief. The ALJ shall fix the time for filing such briefs, not to exceed 60 days from the date the parties receive the transcript of the hearing or, if applicable, the stipulated record. Such briefs may be accompanied by proposed findings of fact and conclusions of law. The ALJ may permit the parties to file reply briefs.
§ 35.37 Initial decision.
(a) The ALJ shall issue an initial decision based only on the record, which shall contain findings of fact, conclusions of law, and the amount of any penalties and assessments imposed.
(b) The findings of fact shall include a finding on each of the following issues:
(1) Whether the claims or statements identified in the complaint, or any portions thereof, violate § 35.3; and
(2) If the person is liable for penalties or assessments, the appropriate amount of any such penalties or assessments considering any mitigating or aggravating factors that he or she finds in the case, such as those described in § 35.31.
(c) The ALJ shall promptly serve the initial decision on all parties within 90 days after the time for submission of post-hearing briefs and reply briefs (if permitted) has expired. The ALJ shall at the same time serve all defendants with a statement describing the right of any defendant determined to be liable for a civil penalty or assessment to file a motion for reconsideration with the ALJ or a notice of appeal with the authority head. If the ALJ fails to meet the deadline contained in this paragraph, he or she shall notify the parties of the reason for the delay and shall set a new deadline.
(d) Unless the initial decision of the ALJ is timely appealed to the authority head, or a motion for reconsideration of the initial decision is timely filed, the initial decision shall constitute the final decision of the authority head and shall be final and binding on the parties 30 days after it is issued by the ALJ.
§ 35.38 Reconsideration of initial decision.
(a) Except as provided in paragraph (d) of this section, any party may file a motion for reconsideration of the initial decision within 20 days of receipt of the initial decision. If service was made by mail within the United States, receipt will be presumed to be five days from the date of mailing in the absence of contrary proof.
(b) Every such motion must set forth the matters claimed to have been erroneously decided and the nature of the alleged errors. Such motion shall be accompanied by a supporting brief.
(c) Responses to such motions shall be allowed only upon request of the ALJ.
(d) No party may file a motion for reconsideration of an initial decision that has been revised in response to a previous motion for reconsideration.
(e) The ALJ may dispose of a motion for reconsideration by denying it or by issuing a revised initial decision.
(f) If the ALJ denies a motion for reconsideration of the initial decision, the initial decision shall constitute the final decision of the authority head and shall be final and binding on the parties 30 days after the ALJ denies the motion, unless the initial decision is timely appealed to the authority head in accordance with § 35.39.
(g) If the ALJ issues a revised initial decision, that decision shall constitute the final decision of the authority head and shall be final and binding on the parties 30 days after it is issued, unless it is timely appealed to the authority head in accordance with § 35.39.
(a) Any defendant who has filed a timely answer and who is determined in an initial decision to be liable for a civil penalty or assessment may appeal such decision to the authority head by filing a notice of appeal with the authority head in accordance with this section.
(b)(1) No notice of appeal may be filed until the time period for filing a motion for reconsideration under § 35.38 has expired.
(2) If a motion for reconsideration is timely filed, a notice of appeal must be filed within 30 days after the ALJ denies the motion or issues a revised initial decision, whichever applies.
(3) If no motion for reconsideration is timely filed, a notice of appeal must be filed within 30 days after the ALJ issues the initial decision.
(4) The authority head may extend the initial 30-day period for an additional 30 days if the defendant files with the authority head a request for an extension within the initial 30-day period and shows good cause.
(c) If the defendant files a timely notice of appeal with the authority head and the time for filing motions for reconsideration under § 35.38 has expired, the ALJ shall forward the record of the proceeding to the authority head.
(d) A notice of appeal shall be accompanied by a written brief specifying exceptions to the initial decision and reasons supporting the exceptions.
(e) The representative for the Government may file a brief in opposition to exceptions within 30 days of receiving the notice of appeal and accompanying brief.
(f) There is no right to appear personally before the authority head.
(g) There is no right to appeal any interlocutory ruling by the ALJ.
(h) In reviewing the initial decision, the authority head shall not consider any objection that was not raised before the ALJ unless a demonstration is any objection that was not raised before the ALJ unless a demonstration is made of extraordinary circumstances causing the failure to raise the objection.
(i) If any party demonstrates to the satisfaction of the authority head that additional evidence not presented at such hearing is material and that there were reasonable grounds for the failure to present such evidence at such hearing, the authority head shall remand the matter to the ALJ for consideration of such additional evidence.
(j) The authority head may affirm, reduce, reverse, compromise, remand, or settle any penalty or assessment, determined by the ALJ in any initial decision.
(k) The authority head shall promptly serve each party to the appeal with a copy of the decision of the authority head and a statement describing the right of the defendant to seek judicial review.
(l) Unless a petition for review is filed as provided in 31 U.S.C. 3805 after a defendant has exhausted all administrative remedies under this part and within 60 days after the date on which the authority head serves the defendant with a copy of the authority head’s decision, a determination that a defendant is liable under § 35.3 is final and is not subject to judicial review.
§ 35.40 Stays ordered by the Department of Justice.
If at any time the Attorney General or an Assistant Attorney General designated by the Attorney General transmits to the authority head a written finding that continuation of the administrative process described in this part with respect to a claim or statement may adversely affect any pending or potential criminal or civil action related to such claim or statement, the authority head shall stay the process immediately. The authority head may order the process resumed only upon receipt of the written authorization of the Attorney General.
§ 35.41 Stay pending appeal.
(a) An initial decision is stayed automatically pending disposition of a motion for reconsideration or of an appeal to the authority head.
(b) No administrative stay is available following a final decision of the authority head.
§ 35.42 Judicial review.
Section 3805 of title 31, United States Code, authorizes judicial review by an appropriate United States District Court of a final decision of the authority head imposing penalties or assessments under this part and specifies the procedures for such review.
§ 35.43 Collection of civil penalties and assessments.
Sections 3806 and 3808(b) of title 31, United States Code, authorize actions for collection of civil penalties and assessments imposed under this part and specify the procedures for such actions.
§ 35.44 Right to administrative offset.
The amount of any penalty or assessment which has become final, or for which a judgment has been entered under § 35.42 or § 35.43, or any amount agreed upon in a compromise or settlement under § 35.46, may be collected by administrative offset under 31 U.S.C. 3716, except that an administrative offset may not be made under this subsection against a refund of an overpayment of federal taxes, then or later owing by the United States to the defendant.
§ 35.45 Deposit in Treasury of United States.
All amounts collected pursuant to this part shall be deposited as miscellaneous receipts in the Treasury of the United States, except as provided in 31 U.S.C. 3806(g).
§ 35.46 Compromise or settlement.
(a) Parties may make offers of compromise or settlement at any time.
(b) The reviewing official has the exclusive authority to compromise or settle a case under this part at any time after the date on which the reviewing official is permitted to issue a complaint and before the date on which the ALJ issues an initial decision.
(c) The authority head has exclusive authority to compromise or settle a case under this part at any time after the date on which the ALJ issues an initial decision, except during the pendency of any review under § 35.42 or during the pendency of any action to collect penalties and assessments under § 35.43.
(d) The Attorney General has exclusive authority to compromise or settle a case under this part during the pendency of any review under § 35.42 or of any action to recover penalties and assessments under 31 U.S.C. 3806.
(e) The investigating official may recommend settlement terms to the reviewing official, the authority head, or the Attorney General, as appropriate. The reviewing official may recommend settlement terms to the authority head, or the Attorney General, as appropriate.
(f) Any compromise or settlement must be in writing.
§ 35.47 Limitations.
(a) The notice of hearing with respect to a claim or statement must be served in the manner specified in § 35.8 within six years after the date on which such claim or statement is made.
(b) If the defendant fails to file a timely answer, service of notice under § 35.10(b) shall be deemed a notice of hearing for purposes of this section.
(c) The statute of limitations may be extended by agreement of the parties.
SUBCHAPTER E – VISAS
PART 40 – REGULATIONS PERTAINING TO BOTH NONIMMIGRANTS AND IMMIGRANTS UNDER THE IMMIGRATION AND NATIONALITY ACT, AS AMENDED
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 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 attaché or an assistant attaché. 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) DHS means the Department of Homeland Security.
(h) 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.
(i) 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 § 40.51(c).
(j) 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 but includes dependent areas, as defined in this section.
(k) INA means the Immigration and Nationality Act, as amended.
(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 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 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 DHS at which an alien may apply to DHS 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
(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).
§ 40.2 Documentation of nationals.
(a) Nationals of the United States. A national of the United States shall not be issued a visa or other documentation as an alien for entry into the United States.
(b) Former Nationals of the United States. A former national of the United States who seeks to enter the United States must comply with the documentary requirements applicable to aliens under the INA.
§ 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. The FBI’s National Crime Information Center (NCIC) criminal history records are law enforcement sensitive and can only be accessed by authorized consular personnel with visa processing responsibilities.
(b) Use of information. NCIC criminal history record information shall be used solely to determine whether or not to issue a visa to an alien or to admit an alien to the United States. All third party requests for access to NCIC criminal history record information shall be referred to the FBI.
(c) Confidentiality and protection of records. To protect applicants’ privacy, authorized Department personnel must secure all NCIC criminal history records, automated or otherwise, to prevent access by unauthorized persons. Such criminal history records must be destroyed, deleted or overwritten upon receipt of updated versions.
§ 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.
Subpart B – Medical Grounds of Ineligibility
§ 40.11 Medical grounds of ineligibility.
(a) Decision on eligibility based on findings of medical doctor. A finding of a panel physician designated by the post in whose jurisdiction the examination is performed pursuant to INA 212(a)(1) shall be binding on the consular officer, except that the officer may refer a panel physician finding in an individual case to USPHS for review.
(b) Waiver of ineligibility – INA 212(g). If an immigrant visa applicant is inadmissible under INA 212(a)(1)(A)(i), (ii), or (iii) but is qualified to seek the benefits of INA 212(g)(1)(A) or (B), 212(g)(2)(C), or 212(g)(3), the consular officer shall inform the alien of the procedure for applying to DHS for relief under the applicable provision of law. A visa may not be issued to the alien until the consular officer has received notification from DHS of the approval of the alien’s application under INA 212(g), unless the consular officer has been delegated authority by the Secretary of Homeland Security to grant the particular waiver under INA 212(g).
(c) Waiver authority – INA 212(g)(2)(A) and (B). The consular officer may waive section 212(a)(1)(A)(ii) visa ineligibility if the alien qualifies for such waiver under the provisions of INA 212(g)(2)(A) or (B).
§§ 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 – (1) Acts must constitute a crime under criminal law of jurisdiction where they occurred. A Consular Officer may make a finding of ineligibility under INA 212(a)(2)(A)(i)(I) based upon an alien’s admission of the commission of acts which constitute the essential elements of a crime involving moral turpitude, only if the acts constitute a crime under the criminal law of the jurisdiction where they occurred. However, a Consular Officer must base a determination that a crime involves moral turpitude upon the moral standards generally prevailing in the United States.
(2) Conviction for crime committed under age 18. (i) An alien will not be ineligible to receive a visa under INA 212(a)(2)(A)(i)(I) by reason of any offense committed:
(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. An alien convicted of a crime involving moral turpitude or admitting the commission of acts which constitute the essential elements of such a crime and who has committed an additional crime involving moral turpitude shall be ineligible under INA 212(a)(2)(A)(i)(I), even though the crimes were committed while the alien was under the age of 18 years.
(4) Conviction in absentia. A conviction in absentia of a crime involving moral turpitude does not constitute a conviction within the meaning of INA 212(a)(2)(A)(i)(I).
(5) Effect of pardon by appropriate U.S. authorities/foreign states. An alien shall not be considered ineligible under INA 212(a)(2)(A)(i)(I) by reason of a conviction of a crime involving moral turpitude for which a full and unconditional pardon has been granted by the President of the United States, by the Governor of a State of the United States, by the former High Commissioner for Germany acting pursuant to Executive Order 10062, or by the United States Ambassador to the Federal Republic of Germany acting pursuant to Executive Order 10608. A legislative pardon or a pardon, amnesty, expungement of penal record or any other act of clemency granted by a foreign state shall not serve to remove a ground of ineligibility under INA 212(a)(2)(A)(i)(I).
(6) Political offenses. The term “purely political offense”, as used in INA 212(a)(2)(A)(i)(I), includes offenses that resulted in convictions obviously based on fabricated charges or predicated upon repressive measures against racial, religious, or political minorities.
(7) Waiver of ineligibility – INA 212(h). If an immigrant visa applicant is ineligible under INA 212(a)(2)(A)(i)(I) but is qualified to seek the benefits of INA 212(h), the consular officer shall inform the alien of the procedure for applying to DHS for relief under that provision of law. A visa may not be issued to the alien until the consular officer has received notification from DHS of the approval of the alien’s application under INA 212(h).
(b) Controlled substance violators – (1) Date of conviction not pertinent. An alien shall be ineligible under INA 212(a)(2)(A)(i)(II) irrespective of whether the conviction for a violation of or for conspiracy to violate any law or regulation relating to a controlled substance, as defined in the Controlled Substance Act (21 U.S.C. 802), occurred before, on, or after October 27, 1986.
(2) Waiver of ineligibility – INA 212(h). If an immigrant visa applicant is ineligible under INA 212(a)(2)(A)(i)(II) but is qualified to seek the benefits of INA 212(h), the consular officer shall inform the alien of the procedure for applying to DHS for relief under that provision of law. A visa may not be issued to the alien until the consular officer has received notification from DHS of the approval of the alien’s application under INA 212(h).
§ 40.22 Multiple criminal convictions.
(a) Conviction(s) for crime(s) committed under age 18. An alien shall not be ineligible to receive a visa under INA 212(a)(2)(B) by reason of any offense committed prior to the alien’s fifteenth birthday. Nor shall an alien be ineligible under INA 212(a)(2)(B) by reason of any offense committed 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(l) and section 16 of Title 18 of the United States Code. 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, and who has also been convicted of at least one other such offense or any other offense committed as an adult, shall be subject to the provisions of INA 212(a)(2)(B) regardless of whether at that time juvenile courts existed within the jurisdiction of the conviction.
(b) Conviction in absentia. A conviction in absentia shall not constitute a conviction within the meaning of INA 212(a)(2)(B).
(c) Effect of pardon by appropriate U.S. authorities/foreign states. An alien shall not be considered ineligible under INA 212(a)(2)(B) by reason in part of having been convicted of an offense for which a full and unconditional pardon has been granted by the President of the United States, by the Governor of a State of the United States, by the former High Commissioner for Germany acting pursuant to Executive Order 10062, or by the United States Ambassador to the Federal Republic of Germany acting pursuant to Executive Order 10608. A legislative pardon or a pardon, amnesty, expungement of penal record or any other act of clemency granted by a foreign state shall not serve to remove a ground of ineligibility under INA 212(a)(2)(B).
(d) Political offense. The term “purely political offense”, as used in INA 212(a)(2)(B), includes offenses that resulted in convictions obviously based on fabricated charges or predicated upon repressive measures against racial, religious, or political minorities.
(e) Waiver of ineligibility – INA 212(h). If an immigrant visa applicant is ineligible under INA 212(a)(2)(B) but is qualified to seek the benefits of INA 212(h), the consular officer shall inform the alien of the procedure for applying to DHS for relief under that provision of law. A visa may not be issued to the alien until the consular officer has received notification from DHS of the approval of the alien’s application under INA 212(h).
§ 40.23 Controlled substance traffickers. [Reserved]
§ 40.24 Prostitution and commercialized vice.
(a) Activities within 10 years preceding visa application. An alien shall be ineligible under INA 212(a)(2)(D) only if –
(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. The term “prostitution” means engaging in promiscuous sexual intercourse for hire. A finding that an alien has “engaged” in prostitution must be based on elements of continuity and regularity, indicating a pattern of behavior or deliberate course of conduct entered into primarily for financial gain or for other considerations of material value as distinguished from the commission of casual or isolated acts.
(c) Where prostitution not illegal. An alien who is within one or more of the classes described in INA 212(a)(2)(D) is ineligible to receive a visa under that section even if the acts engaged in are not prohibited under the laws of the foreign country where the acts occurred.
(d) Waiver of ineligibility – INA 212(h). If an immigrant visa applicant is ineligible under INA 212(a)(2)(D) but is qualified to seek the benefits of INA 212(h), the consular officer shall inform the alien of the procedure for applying to DHS for relief under that provision of law. A visa may not be issued to the alien until the consular officer has received notification from DHS of the approval of the alien’s application under 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. The term affiliate, as used in INA 212(a)(3)(D), means an oganization which is related to, or identified with, a proscribed association or party, including any section, subsidiary, branch, or subdivision thereof, in such close association as to evidence an adherence to or a furtherance of the purposes and objectives of such association or party, or as to indicate a working alliance to bring to fruition the purposes and objectives of the proscribed association or party. An organization which gives, loans, or promises support, money, or other thing of value for any purpose to any proscribed association or party is presumed to be an affiliate of such association or party, but nothing contained in this paragraph shall be construed as an exclusive definition of the term affiliate.
(b) Service in Armed Forces. Service, whether voluntary or not, in the armed forces of any country shall not be regarded, of itself, as constituting or establishing an alien’s membership in, or affiliation with, any proscribed party or organization, and shall not, of itself, constitute a ground of ineligibility to receive a visa.
(c) Voluntary Service in a Political Capacity. Voluntary service in a political capacity shall constitute affiliation with the political party or organization in power at the time of such service.
(d) Voluntary Membership After Age 16. If an alien continues or continued membership in or affiliation with a proscribed organization on or after reaching 16 years of age, only the alien’s activities after reaching that age shall be pertinent to a determination of whether the continuation of membership or affiliation is or was voluntary.
(e) Operation of Law Defined. The term operation of law, as used in INA 212(a)(3)(D), includes any case wherein the alien automatically, and without personal acquiescence, became a member of or affiliated with a proscribed party or organization by official act, proclamation, order, edict, or decree.
(f) Membership in Organization Advocating Totalitarian Dictatorship in the United States. In accordance with the definition of totalitarian party contained in INA 101(a)(37), a former or present voluntary member of, or an alien who was, or is, voluntarily affiliated with a noncommunist party, organization, or group, or of any section, subsidiary, branch, affiliate or subdivision thereof, which during the time of its existence did not or does not advocate the establishment in the United States of a totalitarian dictatorship, is not considered ineligible under INA 212(a)(3)(D) to receive a visa.
(g) Waiver of ineligibility – 212(a)(3)(D)(iv). lf an immigrant visa applicant is ineligible under INA 212(a)(3)(D) but is qualified to seek the benefits of INA 212(a)(3)(D)(iv), the consular officer shall inform the alien of the procedure for applying to DHS for relief under that provision of law. A visa may not be issued to the alien until the consular officer has received notification from DHS of the approval of the alien’s application under INA 212(a)(3)(D)(iv).
§ 40.35 Participants in Nazi persecutions or genocide.
(a) Participation in Nazi persecutions. [Reserved]
(b) Participation in genocide. [Reserved]
§§ 40.36-40.39 [Reserved]
Subpart E – Public Charge
§ 40.41 Public charge.
(a) Basis for determination of ineligibility. Any determination that an alien is ineligible under INA 212(a)(4) must be predicated upon circumstances indicating that, taking into account any Affidavit of Support under section 213A of the INA that may have been filed on the alien’s behalf, the alien is likely at any time to become a public charge after admission, or, if applicable, that the alien has failed to submit a sufficient Affidavit of Support Under Section 213A of the INA as set forth in either INA 212(a)(4)(C) or 212(a)(4)(D). Consular officers will consider whether any identified third party is willing and able to financially support the alien while the alien is in the United States. When considering the likelihood of an alien becoming a public charge at any time through receipt of public benefits, as defined in paragraph (c) of this section, consular officers will use a more likely than not standard and take into account the totality of the alien’s circumstances at the time of visa application, including at a minimum: The alien’s age; health; family status; assets, resources, and financial status; and education and skills. No one enumerated factor alone, apart from the lack of a sufficient Affidavit of Support under section 213A of the Act where required, will make the alien more likely than not to become a public charge. For immigration classifications exempt from the public charge ground of ineligibility, see 8 CFR 212.23(a).
(1) The alien’s age. Consular officers will consider whether the alien’s age makes the alien more likely than not to become a public charge in the totality of the circumstances, such as by impacting the alien’s ability to work. Consular officers will consider an alien’s age between 18 and early retirement age as defined in 42 U.S.C. 416(l)(2) as a positive factor. Age is a negative factor for aliens who are under the age of 18. However, consular officers may consider other factors, such as the support provided to a minor child by a parent, legal guardian, or other source, that in the totality of the circumstances may offset the alien’s age as a negative factor. An alien’s age above early retirement age is a negative factor in the totality of the circumstances, if the consular officer believes it adversely affects the alien’s ability to obtain or perform work, or may increase the potential for healthcare related costs that would be borne by the public.
(2) The alien’s health. Consular officers will consider whether the alien’s health is a positive or negative factor in the totality of the circumstances, including whether the alien, has been diagnosed with a medical condition that is likely to require extensive medical care or institutionalization, or that will interfere with the alien’s ability to provide and care for himself or herself, to attend school, or to work, if authorized. Consular officers will consider the report of a medical examination performed by the panel physician where such examination is required, including any medical conditions noted by the panel physician. An individual with a Class B medical condition, including Class B forms of communicable diseases of public health significance, as defined in 42 CFR part 34, is not alone a determinative factor for public charge purposes. The medical condition will be taken into consideration with all factors under the totality of circumstances. In assessing the effect of the alien’s health on a public charge ineligibility determination, the consular officer will consider evidence of health insurance or the ability to pay for reasonably foreseeable medical expenses in the United States a positive factor in the totality of the circumstances.
(3) The alien’s family status. When considering an alien’s family status, consular officers will consider the size of the alien’s household, as defined in paragraph (e) of this section, and whether the alien’s household size is a positive or negative factor in the totality of the circumstances.
(4) The alien’s assets, resources, and financial status – (i) In general. Consular officers will consider, among other relevant factors, the following aspects of an alien’s assets, resources, and financial status:
(A) If the alien’s annual gross income for the alien’s household size is at least 125 percent of the most recent Federal Poverty Guidelines based on the alien’s household size (or 100 percent for an alien on active duty, other than training, in the Armed Forces), consular officers will consider the alien’s income a positive factor;
(B) If the alien’s annual household gross income is less than 125 percent of the most recent Federal Poverty Guidelines (100 percent for those on active duty, other than training, in the Armed Forces) based on the alien’s household size, consular officers will consider a total value of the household assets and resources that is at least five times the difference between the alien’s household gross income and 125 percent of the Federal Poverty Guidelines for the alien’s household size as a positive factor. However, if the alien is the spouse or child of a U.S. citizen, assets totaling three times the difference between the alien’s household gross income and 125 percent of the Federal Poverty Guidelines (100 percent for those on active duty, other than training, in the Armed Forces) for the alien’s household size is a positive factor. If the alien is a child who will be adopted in the United States and who will likely receive citizenship under section 320 of the INA, then assets equivalent to or greater than the difference between the alien’s household gross income and 125 percent the Federal Poverty Guidelines (100 percent for those on active duty, other than training, in the Armed Forces) for the alien’s household size is a positive factor.
(ii) Factors to consider. When considering an alien’s assets, resources, and financial status, consular officers must consider assets, resources, and financial status including:
(A) The alien’s household annual gross income;
(B) The alien’s cash assets and resources;
(C) Non-cash assets and resources that can be converted into cash within twelve months of the visa application;
(D) The alien’s financial liabilities;
(E) Whether the alien has applied for, been certified to receive, been approved to receive, or received one or more public benefits, as defined in paragraph (c) of this section on or after October 15, 2019, or whether the alien has disenrolled or requested to be disenrolled from such public benefits.
(F) Whether the alien has received an immigration benefit fee waiver from DHS on or after October 15, 2019, unless the fee waiver was applied for or granted as part of an application for which a public charge inadmissibility under section 212(a)(4) of the Act was not required; and
(G) Whether the alien has private health insurance or other financial resources sufficient to cover reasonably foreseeable costs related to a medical condition in the United States.
(iii) Income from illegal activities or sources. Consular officers may not consider any income from illegal activities or sources, such as proceeds from illegal gambling or drug sales, or income from any public benefit listed in paragraph (c) of this section.
(5) The alien’s education and skills. When considering an alien’s education and skills, consular officers will consider both positive and negative factors associated with whether the alien has adequate education and skills to either obtain or maintain lawful employment with an income sufficient to avoid being likely to become a public charge. In assessing whether the alien’s level of education and skills makes the alien likely to become a public charge, the consular officer must consider, among other factors, the alien’s history of employment, educational level (high school diploma, or its equivalent, or higher educational degree), any occupational skills, certifications or licenses, and English language proficiency or proficiency in languages in addition to English. Consular officers will take into positive consideration an alien who is a primary caregiver 18 years of age or older who has significant responsibility for actively caring for and managing the well-being of a minor, elderly, ill, or disabled person residing in the alien’s household, such that the alien lacks an employment history or current employment, or is not employed full time. Only one alien within a household can be considered a primary caregiver of the same individual within the household.
(6) Prospective visa classification. When considering the likelihood at any time of an alien becoming a public charge, consular officers will consider the visa classification sought.
(7) Affidavit of Support Under Section 213A of the Act. Any alien seeking an immigrant visa under INA 201(b)(2), 203(a), or 203(b), based upon a petition filed by a relative of the alien (or in the case of a petition filed under INA 203(b) by an entity in which a relative has a significant ownership interest), shall be required to present to the consular officer an Affidavit of Support Under Section 213A of the INA on a form that complies with terms and conditions established by the Secretary of Homeland Security. A properly filed, non-fraudulent, sufficient Affidavit of Support Under Section 213A of the INA, in those cases where it is required, is a positive factor in the totality of the circumstances if the sponsor is likely to actually provide the alien with the statutorily-required amount of financial support and other related considerations.
(8) Heavily weighted factors. The factors below will weigh heavily in an ineligibility determination based on public charge.
(i) Heavily weighted negative factors. The following factors will weigh heavily in favor of a finding that an alien is likely at any time in the future to become a public charge:
(A) The alien is not a full-time student and is authorized to work in his or her country of residence or the United States, as appropriate, but is unable to satisfy the consular officer that he or she is currently employed, has recent employment history, or a reasonable prospect of future employment;
(B) The alien has received or has been certified or approved to receive one or more public benefits, as defined in paragraph (c) of this section, for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months’ worth of benefits), beginning no earlier than October 15, 2019, or for more than 12 months in the aggregate within the 36 month period prior to the adjudication of the alien’s visa application, whichever is later.
(C)(1) The alien has been diagnosed with a medical condition that is likely to require extensive medical treatment or institutionalization or that will interfere with the alien’s ability to provide for himself or herself, attend school, or work; and
(2) The alien has no health insurance for use in the United States and has neither the prospect of obtaining private health insurance for use in the United States, nor the financial resources to pay for reasonably foreseeable medical costs related to such medical condition;
(D) The alien was previously found inadmissible or deportable on public charge grounds by an Immigration Judge or the Board of Immigration Appeals.
(ii) Heavily weighted positive factors. The following factors will weigh heavily in favor of a finding that an alien is not likely at any time to become a public charge:
(A) The alien’s household has income, assets, resources, or support of at least 250 percent of the Federal Poverty Guidelines for the alien’s household size. Consular officers may not consider any income from illegal activities, e.g., proceeds from illegal gambling or drug sales, or any income derived from any public benefit as defined in paragraph (c) of this section;
(B) The alien is authorized to work and is currently employed with an annual income of at least 250 percent of the Federal Poverty Guidelines for the alien’s household size. Consular officers may not consider any income from illegal activities, e.g., proceeds from illegal gambling or drug sales;
(C) The alien has private health insurance (other than health insurance obtained with premium tax credits under the Affordable Care Act) for use in the United States covering the expected period of admission.
(9) Treatment of benefits received before October 15, 2019. When considering whether an alien is more likely than not to become a public charge under this section, consular officers will consider, as a negative factor, but not as a heavily weighted negative factor as described in paragraph (a)(8) of this section, any amount of cash assistance for income maintenance, including Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF), State and local cash assistance programs that provide benefits for income maintenance (often called “General Assistance” programs), and programs (including Medicaid) supporting aliens who are institutionalized for long-term care, received, or certified for receipt, before October 15, 2019.
(b) Public charge. Public charge means, for the purpose of INA 212(a)(4)(A) and (B), an alien who receives one or more public benefits, as defined in paragraph (c) of this section, for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months’ worth of benefits).
(c) Public benefit. (1) Public benefit means any of the following forms of assistance received on or after October 15, 2019:
(i) Any Federal, State, local, or tribal cash assistance for income maintenance (other than tax credits), including:
(A) Supplemental Security Income (SSI), 42 U.S.C. 1381 et seq.;
(B) Temporary Assistance for Needy Families (TANF), 42 U.S.C. 601 et seq.;
(C) Federal, State or local cash benefit programs for income maintenance (often called “General Assistance” in the State context, but which also exist under other names); and
(ii) Supplemental Nutrition Assistance Program (SNAP), 7 U.S.C. 2011 et seq.;
(iii) Housing Choice Voucher Program, as authorized under section 8(o) of the United States Housing Act of 1937 (42 U.S.C. 1437f);
(iv) Project-Based Rental Assistance (including Moderate Rehabilitation) authorized under section 8 of the United States Housing Act of 1937 (42 U.S.C. 1437f);
(v) Medicaid under 42 U.S.C. 1396 et seq., except for:
(A) Benefits received for an emergency medical condition as described in section 1903(v)(2)-(3) of Title XIX of the Social Security Act, 42 U.S.C. 1396b(v)(2)-(3), 42 CFR 440.255(c);
(B) Services or benefits funded by Medicaid but provided under the Individuals with Disabilities Education Act (IDEA) 20 U.S.C. 1400 et seq.;
(C) School-based services or benefits provided to individuals who are at or below the oldest age eligible for secondary education as determined under State or local law; and
(D) Benefits received by an alien under 21 years of age, or a woman during pregnancy (and during the 60-day period beginning on the last day of the pregnancy).
(vi) Public Housing under section 9 of the U.S. Housing Act of 1937 (42 U.S.C. 1437g).
(2) Public benefit, as defined in this section, does not include any form of assistance listed in paragraphs (c)(1)(i) through (vi) of this section received by an alien who at the time of receipt of the public benefit, or at the time of visa application or visa adjudication, is or was:
(i) Enlisted in the U.S. Armed Forces under the authority of 10 U.S.C. 504(b)(1)(B) or 10 U.S.C. 504(b)(2), or
(ii) Serving in active duty or in the Ready Reserve component of the U.S. Armed Forces, or
(iii) Is the spouse or child as defined in INA101(b), of an individual described in paragraph (c)(2)(i) or (ii) of this section, or of a citizen of the United States described in paragraph (c)(2)(i) or (ii).
(3) Public benefit, as defined in this section, does not include any form of assistance listed in paragraphs (c)(1)(i) through (vi) of this section received by an alien during periods in which the alien was present in the United States in an immigration category that is exempt from the public charge ground of inadmissibility, as set forth in 8 CFR 212.23(a), or for which the alien received a waiver of public charge inadmissibility from DHS. Public benefit does not include health services for immunizations and for testing and treatment of communicable diseases, including communicable diseases of public health significance as defined in 42 CFR part 34.
(4) Public benefit, as defined in this section, does not include any form of assistance listed in paragraphs (c)(1)(i) through (vi) of this section that were or will be received by:
(i) Children of U.S. citizens whose lawful admission as permanent residents and subsequent residence in the legal and physical custody of their U.S. citizen parent will result automatically in the child’s acquisition of citizenship;
(ii) Children of U.S. citizens whose lawful admission as permanent residents will result automatically in the child’s acquisition of citizenship upon finalization of adoption; or
(iii) Children of U.S. citizens who are entering the United States for the purpose of attending an interview under INA 322 in accordance with 8 CFR part 322.
(d) Alien’s household. For purposes of public charge ineligibility determinations under INA 212(a)(4):
(1) If the alien is 21 years of age or older, or under the age of 21 and married, the alien’s household includes:
(i) The alien;
(ii) The alien’s spouse, if physically residing or intending to physically reside with the alien in the United States;
(iii) The alien’s children, as defined in INA 101(b)(1), if physically residing or intending to physically reside with the alien in the United States;
(iv) The alien’s other children, as defined in INA 101(b)(1), not physically residing or not intending to physically reside with the alien for whom the alien provides or is required to provide at least 50 percent of financial support, as evidenced by a child support order or agreement, a custody order or agreement, or any other order or agreement specifying the amount of financial support to be provided by the alien;
(v) Any other individuals (including a spouse not physically residing or intending to physically reside with the alien) to whom the alien provides, or is required to provide, at least 50 percent of the individual’s financial support or who are listed as dependents on the alien’s United States federal income tax return; and
(vi) Any individual who provides to the alien at least 50 percent of the alien’s financial support, or who lists the alien as a dependent on his or her federal income tax return.
(2) If the alien is a child as defined in INA 101(b)(1), the alien’s household includes the following individuals:
(i) The alien;
(ii) The alien’s children as defined in INA 101(b)(1), physically residing or intending to physically reside with the alien in the United States;
(iii) The alien’s other children as defined in INA 101(b)(1) not physically residing or intending to physically reside with the alien for whom the alien provides or is required to provide at least 50 percent of the children’s financial support, as evidenced by a child support order or agreement, a custody order or agreement, or any other order or agreement specifying the amount of financial support to be provided by the alien;
(iv) The alien’s parents, legal guardians, or any other individual providing or required to provide at least 50 percent of the alien’s financial support to the alien as evidenced by a child support order or agreement, a custody order or agreement, or any other order or agreement specifying the amount of financial support to be provided to the alien;
(v) The alien’s parents’ or legal guardians’ other children as defined in INA 101(b)(1), physically residing or intending to physically reside with the alien in the United States;
(vi) The alien’s parents’ or legal guardians’ other children as defined in INA 101(b)(1), not physically residing or intending to physically reside with the alien for whom the parent or legal guardian provides or is required to provide at least 50 percent of the other children’s financial support, as evidenced by a child support order or agreement, a custody order or agreement, or any other order or agreement specifying the amount of financial support to be provided by the parents or legal guardians; and
(vii) Any other individual to whom the alien’s parents or legal guardians provide, or are required to provide at least 50 percent of each individual’s financial support, or who is listed as a dependent on the parent’s or legal guardian’s federal income tax return.
(e) Receipt of public benefit. Receipt of public benefit occurs when a public benefit-granting agency provides a public benefit, as defined in paragraph (c) of this section, to the alien as a beneficiary, whether in the form of cash, voucher, services, or insurance coverage. Application or certification for a public benefit does not constitute receipt of public benefit, but it may be considered as a factor suggesting likelihood of future receipt. An alien’s receipt of, application for, or certification for public benefit solely on behalf of another individual does not constitute receipt of, application for, or certification for such alien.
(f) Prearranged employment. An immigrant visa applicant relying on an offer of prearranged employment to establish eligibility under INA 212(a)(4), other than an offer of employment certified by the Department of Labor pursuant to INA 212(a)(5)(A), must provide written confirmation of the relevant information sworn and subscribed to before a notary public by the employer or an authorized employee or agent of the employer. The signer’s printed name and position or other relationship with the employer must accompany the signature.
§§ 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. INA 212(a)(5)(A) applies only to immigrant aliens described in INA 203(b)(2) or (3) who are seeking to enter the United States for the purpose of engaging in gainful employment.
(b) Determination of need for alien’s labor skills. An alien within one of the classes to which INA 212(a)(5) applies as described in § 40.51(a) who seeks to enter the United States for the purpose of engaging in gainful employment, shall be ineligible under INA 212(a)(5)(A) to receive a visa unless the Secretary of Labor has certified to the Secretary of Homeland Security and the Secretary of State, that
(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. A spouse or child accompanying or following to join an alien spouse or parent who is a beneficiary of a petition approved pursuant to INA 203(b)(2) or (3) is not considered to be within the purview of INA 212(a)(5).
§ 40.52 Unqualified physicians.
INA 212(a)(5)(B) applies only to immigrant aliens described in INA 203(b) (2) or (3).
§ 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.
§§ 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.
§ 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.
§ 40.63 Misrepresentation; falsely claiming citizenship.
(a) Fraud and misrepresentation and INA 212(a)(6)(C) applicability to certain refugees. An alien who seeks to procure, or has sought to procure, or has procured a visa, other documentation, or entry into the United States or other benefit provided under the INA by fraud or by willfully misrepresenting a material fact at any time shall be ineligible under INA 212(a)(6)(C); Provided, That the provisions of this paragraph are not applicable if the fraud or misrepresentation was committed by an alien at the time the alien sought entry into a country other than the United States or obtained travel documents as a bona fide refugee and the refugee was in fear of being repatriated to a former homeland if the facts were disclosed in connection with an application for a visa to enter the United States: Provided further, That the fraud or misrepresentation was not committed by such refugee for the purpose of evading the quota or numerical restrictions of the U.S. immigration laws, or investigation of the alien’s record at the place of former residence or elsewhere in connection with an application for a visa.
(b) Misrepresentation in application under Displaced Persons Act or Refugee Relief Act. Subject to the conditions stated in INA 212(a)(6)(c)(i), an alien who is found by the consular officer to have made a willful misrepresentation within the meaning of section 10 of the Displaced Persons Act of 1948, as amended, for the purpose of gaining admission into the United States as an eligible displaced person, or to have made a material misrepresentation within the meaning of section 11(e) of the Refugee Relief Act of 1953, as amended, for the purpose of gaining admission into the United States as an alien eligible thereunder, shall be considered ineligible under the provisions of INA 212(a)(6)(C).
(c) Waiver of ineligibility – INA 212(i). If an immigrant applicant is ineligible under INA 212(a)(6)(C) but is qualified to seek the benefits of INA 212(i), the consular officer shall inform the alien of the procedure for applying to DHS for relief under that provision of law. A visa may not be issued to the alien until the consular officer has received notification from DHS of the approval of the alien’s application under INA 212(i).
§ 40.64 Stowaways.
INA 212(a)(6)(D) is not applicable at the time of visa application.
§ 40.65 Smugglers.
(a) General. A visa shall not be issued to an alien who at any time knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law.
(b) Waiver of ineligibility – INA 212(d)(11). If an immigrant applicant is ineligible under INA 212(a)(6)(E) but is qualified to seek the benefits of INA 212(d)(11), the consular officer shall inform the alien of the procedure for applying to DHS for relief under that provision of law. A visa may not be issued to the alien until the consular officer has received notification from DHS of the approval of the alien’s application under INA 212(d)(11).
§ 40.66 Subject of civil penalty.
(a) General. An alien who is the subject of a final order imposing a civil penalty for a violation under INA 274C shall be ineligible for a visa under INA 212(a)(6)(F).
(b) Waiver of ineligibility. If an applicant is ineligible under paragraph (a) of this section but appears to the consular officer to meet the prerequisites for seeking the benefits of INA 212(d)(12), the consular officer shall inform the alien of the procedure for applying to DHS for relief under that provision of law. A visa may not be issued to the alien until the consular officer has received notification from DHS of the approval of the alien’s application under INA 212(d)(12).
§ 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.
§ 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.
§ 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.
§ 40.82 Alien who departed the United States to avoid service in the armed forces.
(a) Applicability to immigrants. INA 212(a)(8)(A) applies to immigrant visa applicants who have departed from or remained outside the United States between September 8, 1939 and September 24, 1978, to avoid or evade training or service in the United States Armed Forces.
(b) Applicability to nonimmigrants. INA 212(a)(8)(B) applies to nonimmigrant visa applicants who have departed from or remained outside the United States between September 8, 1939 and September 24, 1978 to avoid or evade training or service in the U.S. Armed Forces except an alien who held nonimmigrant status at the time of such departure.
§§ 40.83-40.89 [Reserved]
Subpart J – Aliens Previously Removed
§ 40.91 Certain aliens previously removed.
(a) 5-year bar. An alien who has been found inadmissible, whether as a result of a summary determination of inadmissibility at the port of entry under INA 235(b)(1) or of a finding of inadmissibility resulting from proceedings under INA 240 initiated upon the alien’s arrival in the United States, shall be ineligible for a visa under INA 212(a)(9)(A)(i) for 5 years following such alien’s first removal from the United States.
(b) 10-year bar. An alien who has otherwise been removed from the United States under any provision of law, or who departed while an order of removal was in effect, is ineligible for a visa under INA 212(a)(9)(A)(ii) for 10 years following such removal or departure from the United States.
(c) 20-year bar. An alien who has been removed from the United States two or more times shall be ineligible for a visa under INA 212(a)(9)(A)(i) or INA 212(a)(9)(A)(ii), as appropriate, for 20 years following the most recent such removal or departure.
(d) Permanent bar. If an alien who has been removed has also been convicted of an aggravated felony, the alien is permanently ineligible for a visa under INA 212(a)(9)(A)(i) or 212(a)(9)(A)(ii), as appropriate.
(e) Exceptions. An alien shall not be ineligible for a visa under INA 212(a)(9)(A)(i) or (ii) if the Secretary of Homeland Security has consented to the alien’s application for admission.
§ 40.92 Aliens unlawfully present.
(a) 3-year bar. An alien described in INA 212(a)(9)(B)(i)(I) shall be ineligible for a visa for 3 years following departure from the United States.
(b) 10-year bar. An alien described in INA 212(a)(9)(B)(i)(II) shall be ineligible for a visa for 10 years following departure from the United States.
(c) Waiver. If a visa applicant is inadmissible under paragraph (a) or (b) of this section but appears to the consular officer to meet the prerequisites for seeking the benefits of INA 212(a)(9)(B)(v), the alien shall be informed of the procedure for applying to DHS for relief under that provision of law.
§ 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.
§§ 40.94-40.99 [Reserved]
Subpart K – Miscellaneous
§ 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.
§ 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.
§ 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).
§§ 40.106-40.110 [Reserved]
Subpart L – Failure to Comply with INA
§ 40.201 Failure of application to comply with INA.
(a) Refusal under INA 221(g). The consular officer shall refuse an alien’s visa application under INA 221(g)(2) as failing to comply with the provisions of INA or the implementing regulations if:
(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. A refusal of a visa application under paragraph (a)(1) of this section does not bar reconsideration of the application upon compliance by the applicant with the requirements of INA and the implementing regulations or consideration of a subsequent application submitted by the same applicant.
§ 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.
§ 40.206 Frivolous applications. [Reserved]
§§ 40.207-40.210 [Reserved]
Subpart M – Waiver of Ground of Ineligibility
§ 40.301 Waiver for ineligible nonimmigrants under INA 212(d)(3)(A).
(a) Recommendations under INA 212(d)(3)(A)(i). (1) Consular officers, on their own initiative in cases they believe meet one of the criteria in paragraphs (a)(2)(i) through (v) of this section, may submit a report to the Department for possible transmission to the designated DHS office pursuant to INA 212(d)(3)(A)(i) (8 U.S.C. 1182(d)(3)(A)(i)), in the case of an alien who is classifiable as a nonimmigrant but who the consular officer knows or believes is ineligible to receive a nonimmigrant visa due to inadmissibility under the provisions of INA 212(a) (8 U.S.C. 1182(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).
(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: Refusal of the nonimmigrant visa application would become a bilateral irritant or be raised by a foreign government with a high ranking United States government official;
(ii) National security. The nonimmigrant visa applicant’s admission to the United States would advance a U.S. national security interest;
(iii) Law enforcement. The nonimmigrant visa applicant’s admission to the United States would advance an important U.S. law enforcement objective;
(iv) Significant public interest. The nonimmigrant visa applicant’s admission to the United States would advance a significant U.S. public interest, or
(v) Urgent humanitarian or medical reasons. The nonimmigrant visa applicant’s admission to the United States may be warranted due to urgent humanitarian or medical reasons.
(b) Recommendation to designated DHS office. Consular officers may recommend directly to the designated DHS office that the alien be admitted temporarily despite his or her inadmissibility in any case where a waiver may be available, unless the consular officer has reason to believe that the applicant is inadmissible under INA 212(a)(3)(A)(i), (3)(A)(ii), (3)(A)(iii), (3)(B), (3)(C), (3)(D), (3)(E)(i), (3)(E)(ii), (3)(E)(iii), (3)(F), or (3)(G) . The Department may recommend that the Secretary of Homeland Security waive ineligibility under any ground in section 212(a) of the INA, except for sections 212(a)(3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C), (3)(E)(i), and (3)(E)(ii).
(c) Secretary of Homeland Security may impose conditions. When the Secretary of Homeland Security authorizes the temporary admission of an inadmissible alien as a nonimmigrant and the consular officer is so informed, the consular officer may proceed with the issuance of a nonimmigrant visa to the alien, subject to the conditions, if any, imposed by the Secretary of Homeland Security.
PART 41 – VISAS: DOCUMENTATION OF NONIMMIGRANTS UNDER THE IMMIGRATION AND NATIONALITY ACT, AS AMENDED
Subpart A – Passport and Visas Not Required for Certain Nonimmigrants
§ 41.0 Definitions.
For purposes of this part and part 53:
Adjacent islands means Bermuda and the islands located in the Caribbean Sea, except Cuba.
Cruise ship means a passenger vessel over 100 gross tons, carrying more than 12 passengers for hire, making a voyage lasting more than 24 hours any part of which is on the high seas, and for which passengers are embarked or disembarked in the United States or its territories.
Ferry means any vessel operating on a pre-determined fixed schedule and route, which is being used solely to provide transportation between places that are no more than 300 miles apart and which is being used to transport passengers, vehicles, and/or railroad cars.
Pleasure vessel means a vessel that is used exclusively for recreational or personal purposes and not to transport passengers or property for hire.
United States means “United States” as defined in section 215(c) of the Immigration and Nationality Act of 1952, as amended (8 U.S.C. 1185(c)).
U.S. citizen means a United States citizen or a U.S. non-citizen national.
United States qualifying tribal entity means a tribe, band, or other group of Native Americans formally recognized by the United States Government which agrees to meet WHTI document standards.
§ 41.1 Exemption by law or treaty from passport and visa requirements.
Nonimmigrants in the following categories are exempt from the passport and visa requirements of INA 212(a)(7)(B)(i)(I), (i)(II):
(a) Alien members of the U.S. Armed Forces. An alien member of the U.S. Armed Forces in uniform or bearing proper military identification, who has not been lawfully admitted for permanent residence, coming to the United States under official orders or permit of such Armed Forces (Sec. 284, 86 Stat. 232; 8 U.S.C. 1354).
(b) [Reserved]
(c) Aliens entering from Guam, Puerto Rico, or the Virgin Islands. An alien departing from Guam, Puerto Rico, or the Virgin Islands of the United States, and seeking to enter the continental United States or any other place under the jurisdiction of the United States (Sec. 212, 66 Stat. 188; 8 U.S.C. 1182.)
(d) Armed Services personnel of a NATO member. Personnel belonging to the armed services of a government which is a Party to the North Atlantic Treaty and which has ratified the Agreement Between the Parties to the North Atlantic Treaty Regarding the Status of Their Forces, signed at London on June 19, 1951, and entering the United States under Article III of that Agreement pursuant to an individual or collective movement order issued by an appropriate agency of the sending state or of NATO (TIAS 2846; 4 U.S.T. 1792.)
(e) Armed Services personnel attached to a NATO headquarters in the United States. Personnel attached to a NATO Headquarters in the United States set up pursuant to the North Atlantic Treaty, belonging to the armed services of a government which is a Party to the Treaty and entering the United States in connection with their official duties under the provisions of the Protocol on the Status of International Military Headquarters Set Up Pursuant to the North Atlantic Treaty (TIAS 2978; 5 U.S.T. 875.)
(f) Aliens entering pursuant to International Boundary and Water Commission Treaty. All personnel 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 (59 Stat. 1252; TS 994.)
§ 41.2 Exemption or waiver by Secretary of State and Secretary of Homeland Security of passport and/or visa requirements for certain categories of nonimmigrants.
Pursuant to the authority of the Secretary of State and the Secretary of Homeland Security under the INA, as amended, a passport and/or visa is not required for the following categories of nonimmigrants:
(a) Canadian citizens. A visa is not required for an American Indian born in Canada having at least 50 percentum of blood of the American Indian race. A visa is not required for other Canadian citizens except for those who apply for admission in E, K, V, or S nonimmigrant classifications as provided in paragraphs (k) and (m) of this section and 8 CFR 212.1. A passport is required for Canadian citizens applying for admission to the United States, except when one of the following exceptions applies:
(1) NEXUS program. A Canadian citizen who is traveling as a participant in the NEXUS program, and who is not otherwise required to present a passport and visa as provided in paragraphs (k) and (m) of this section and 8 CFR 212.1, may present a valid NEXUS program card when using a NEXUS Air kiosk or when entering the United States from contiguous territory or adjacent islands at a land or sea port-of-entry. A Canadian citizen who enters the United States by pleasure vessel from Canada under the remote inspection system may present a NEXUS program card.
(2) FAST program. A Canadian citizen who is traveling as a participant in the FAST program, and who is not otherwise required to present a passport and visa as provided in paragraphs (k) and (m) of this section and 8 CFR 212.1, may present a valid FAST card at a land or sea port-of-entry prior to entering the United States from contiguous territory or adjacent islands.
(3) SENTRI program. A Canadian citizen who is traveling as a participant in the SENTRI program, and who is not otherwise required to present a passport and visa as provided in paragraphs (k) and (m) of this section and 8 CFR 212.1, may present a valid SENTRI card at a land or sea port-of-entry prior to entering the United States from contiguous territory or adjacent islands.
(4) Canadian Indians. If designated by the Secretary of Homeland Security, a Canadian citizen holder of an Indian and Northern Affairs Canada (“INAC”) card issued by the Canadian Department of Indian Affairs and North Development, Director of Land and Trust Services (LTS) in conformance with security standards agreed upon by the Governments of Canada and the United States, and containing a machine readable zone, and who is arriving from Canada, may present the card prior to entering the United States at a land port-of-entry.
(5) Children. A child who is a Canadian citizen who is seeking admission to the United States when arriving from contiguous territory at a sea or land port-of-entry, may present certain other documents if the arrival meets the requirements described in either paragraph (i) or (ii) of this section.
(i) Children under age 16. A Canadian citizen who is under the age of 16 is permitted to present an original or a copy of his or her birth certificate, a Canadian Citizenship Card, or a Canadian Naturalization Certificate when arriving in the United States from contiguous territory at land or sea ports-of-entry.
(ii) Groups of children under age 19. A Canadian citizen who is under age 19 and who is traveling with a public or private school group, religious group, social or cultural organization, or team associated with a youth sport organization may present an original or a copy of his or her birth certificate, a Canadian Citizenship Card, or a Canadian Naturalization Certificate when applying for admission to the United States from contiguous territory at all land and sea ports-of-entry, when the group, organization or team is under the supervision of an adult affiliated with the organization and when the child has parental or legal guardian consent to travel. For purposes of this paragraph, an adult is considered to be a person who is age 19 or older. The following requirements will apply:
(A) The group, organization, or team must provide to CBP upon crossing the border, on organizational letterhead:
(1) The name of the group, organization or team, and the name of the supervising adult;
(2) A trip itinerary, including the stated purpose of the trip, the location of the destination, and the length of stay;
(3) A list of the children on the trip;
(4) For each child, the primary address, primary phone number, date of birth, place of birth, and the name of at least one parent or legal guardian.
(B) The adult leading the group, organization, or team must demonstrate parental or legal guardian consent by certifying in the writing submitted in paragraph (a)(5)(ii)(A) of this section that he or she has obtained for each child the consent of at least one parent or legal guardian.
(C) The procedure described in this paragraph is limited to members of the group, organization, or team that are under age 19. Other members of the group, organization, or team must comply with other applicable document and/or inspection requirements found in this part and 8 CFR parts 212 and 235.
(6) Enhanced driver’s license programs. Upon the designation by the Secretary of Homeland Security of an enhanced driver’s license as an acceptable document to denote identity and citizenship for purposes of entering the United States, Canadian citizens may be permitted to present these documents in lieu of a passport when seeking admission to the United States according to the terms of the agreements entered between the Secretary of Homeland Security and the entity. The Secretary of Homeland Security will announce, by publication of a notice in the
(b) Citizens of the British Overseas Territory of Bermuda. A visa is not required, except for Citizens of the British Overseas Territory of Bermuda who apply for admission in E, K, V, or S nonimmigrant visa classification as provided in paragraphs (k) and (m) of this section and 8 CFR 212.1. A passport is required for Citizens of the British Overseas Territory of Bermuda applying for admission to the United States.
(c) Bahamian nationals and British subjects resident in the Bahamas. A passport is required. A visa is not required if, prior to the embarkation of such an alien for the United States on a vessel or aircraft, the examining U.S. immigration officer at Freeport or Nassau determines that the individual is clearly and beyond a doubt entitled to admission.
(d) British subjects resident in the Cayman Islands or in the Turks and Caicos Islands. A passport is required. A visa is not required if the alien 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.
(e) Nationals and residents of the British Virgin Islands. (1) A national of the British Virgin Islands and resident therein requires a passport but not a visa if proceeding to the United States Virgin Islands.
(2) A national of the British Virgin Islands and resident therein requires a passport but does not require a visa to apply for entry into the United States if such applicant:
(i) Is proceeding by aircraft directly from St. Thomas, U.S. Virgin Islands;
(ii) Is traveling to some other part of the United States solely for the purpose of business or pleasure as described in INA 101(a)(15)(B);
(iii) Satisfies the examining U.S. Immigration officer at that port of entry that he or she is admissible in all respects other than the absence of a visa; and
(iv) Presents a current certificate issued by the Royal Virgin Islands Police Force indicating that he or she has no criminal record.
(f) Mexican nationals. (1) A visa and a passport are not required of a Mexican national who is applying for admission from Mexico as a temporary visitor for business or pleasure at a land port-of-entry, or arriving by pleasure vessel or ferry, if the national 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 Department of State.
(2) A visa and a passport are not required of a Mexican national who is applying for admission from contiguous territory or adjacent islands at a land or sea port-of-entry, if the national is a member of the Texas Band of Kickapoo Indians or Kickapoo Tribe of Oklahoma who is in possession of a Form I-872 American Indian Card issued by U.S. Citizenship and Immigration Services (USCIS).
(3) A visa is not required of a Mexican national employed as a crew member on an aircraft belonging to a Mexican company authorized to engage in commercial transportation into the United States.
(4) A visa is not required of a Mexican national bearing a Mexican diplomatic or official passport who is a military or civilian official of the Federal Government of Mexico entering the United States for a stay of up to 6 months for any purpose other than on assignment as a permanent employee to an office of the Mexican Federal Government in the United States. A visa is also not required of the official’s spouse or any of the official’s dependent family members under 19 years of age who hold diplomatic or official passports and are in the actual company of the official at the time of entry. This waiver does not apply to the spouse or any of the official’s family members classifiable under INA 101(a)(15) (F) or (M).
(g) Natives and residents of the Trust Territory of the Pacific Islands. A visa and a passport are not required of a native and resident of the Trust Territory of the Pacific Islands who has proceeded in direct and continuous transit from the Trust Territory to the United States.
(h) [Reserved]
(i) Individual cases of unforeseen emergencies. Except as provided in paragraphs (a) through (h) and (j) through (l) of this section, all nonimmigrants are required to present a valid, unexpired visa and passport upon arrival in the United States. A nonimmigrant may apply for a waiver of the visa and passport requirement if, either prior to the nonimmigrant’s embarkation abroad or upon arrival at a port of entry, the Department of Homeland Security (DHS), U.S. Customs and Border Protection (CBP) district director concludes that the nonimmigrant is unable to present the required documents because of an unforeseen emergency. The CBP district director may grant a waiver of the visa or passport requirement pursuant to INA 212(d)(4)(A), without the prior concurrence of the Department of State, if the CBP district director concludes that the nonimmigrant’s claim of emergency circumstances is legitimate and that approval of the waiver would be appropriate under all of the attendant facts and circumstances.
(j) Fiance(e) of a U.S. citizen. Notwithstanding the provisions of paragraphs (a) through (h) of this section, a visa is required of an alien described in such paragraphs who is classified, or who seeks classification, under INA 101(a)(15)(K).
(k) Visa waiver program. (1) A visa is not required of any person who seeks admission to the United States for a period of 90 days or less as a visitor for business or pleasure and who is eligible to apply for admission to the United States as a Visa Waiver Program applicant. (For the list of countries whose nationals are eligible to apply for admission to the United States as Visa Waiver Program applicants, see 8 CFR 217.2(a)).
(2) An alien denied admission under the Visa Waiver Program by virtue of a ground of inadmissibility described in INA section 212(a) that is discovered at the time of the alien’s application for admission at a port of entry or through use of an automated electronic database may apply for a visa as the only means of challenging such a determination. A consular officer must accept and adjudicate any such application if the alien otherwise fulfills all of the application requirements contained in part 41, § 41.2(l)(1).
(l) Treaty Trader and Treaty Investor. Notwithstanding the provisions of paragraph (a) of this section, a visa is required of a Canadian national who is classified, or who seeks classification, under INA 101(a)(15)(E).
§ 41.3 Waiver by joint action of consular and immigration officers of passport and/or visa requirements.
Under the authority of INA 212(d)(4), the documentary requirements of INA 212(a)(7)(B)(i)(I), (i)(II) may be waived for any alien in whose case the consular officer serving the port or place of embarkation, or the Deputy Assistant Secretary of State for Visa Services or his or her designee, is satisfied after consultation with, and concurrence by, the appropriate immigration officer, that the case falls within any of the following categories:
(a) Residents of foreign contiguous territory; visa and passport waiver. An alien residing in foreign contiguous territory who does not qualify for any waiver provided in § 41.1 and is a member of a visiting group or excursion proceeding to the United States under circumstances which make it impractical to procure a passport and visa in a timely manner.
(b) Aliens for whom passport extension facilities are unavailable; passport waiver. As alien whose passport is not valid for the period prescribed in INA 212(a)(7)(B)(i)(I) and who is embarking for the United States at a port or place remote from any establishment at which the passport could be revalidated.
(c) Aliens precluded from obtaining passport extensions by foreign government restrictions; passport waiver. An alien whose passport is not valid for the period prescribed in INA 212(a)(7)(B)(i)(I) and whose government, as a matter of policy, does not revalidate passports more than 6 months prior to expiration or until the passport expires.
(d) Emergent circumstances; visa waiver. An alien well and favorably known at the consular office, who was previously issued a nonimmigrant visa which has expired, and who is proceeding directly to the United States under emergent circumstances which preclude the timely issuance of a visa.
(e) Members of armed forces and coast guards of foreign countries; visa and passport waiver. An alien on active duty in the armed forces or coast guard of a foreign country and a member of a group of such armed forces or coast guard traveling to the United States, on behalf of the alien’s government or the United Nations, under arrangements made with the appropriate military authorities of the United States, coordinated within the U.S. Government by those U.S. military authorities, and approved by the Department of State and the Department of Homeland Security for such visit.
(f) Landed immigrants in Canada; passport waiver. An alien applying for a visa at a consular office in Canada:
(1) Who is a landed immigrant in Canada;
(2) Whose port and date of expected arrival in the United States are known; and
(3) Who is proceeding to the United States under emergent circumstances which preclude the timely procurement of a passport or Canadian certificate of identity.
(g) Authorization to individual consular office; visa and/or passport waiver. An alien within the district of a consular office which has been authorized by the Department, because of unusual circumstances prevailing in that district, to join with immigration officers abroad in waivers of documentary requirements in specific categories of cases, and whose case falls within one of those categories.
Subpart B – Classification of Nonimmigrants
§ 41.11 Entitlement to nonimmigrant status.
(a) Presumption of immigrant status and burden of proof. An applicant for a nonimmigrant visa, other than an alien applying for a visa under INA 101(a)(15) (H)(i) or (L), shall be presumed to be an immigrant until the consular officer is satisfied that the alien is entitled to a nonimmigrant status described in INA 101(a)(15) or otherwise established by law or treaty. The burden of proof is upon the applicant to establish entitlement for nonimmigrant status and the type of nonimmigrant visa for which application is made.
(b) Aliens unable to establish nonimmigrant status. (1) A nonimmigrant visa shall not be issued to an alien who has failed to overcome the presumption of immigrant status established by INA 214(b).
(2) In a borderline case in which an alien appears to be otherwise entitled to receive a visa under INA 101(a)(15)(B) or (F) but the consular officer concludes that the maintenance of the alien’s status or the departure of the alien from the United States as required is not fully assured, a visa may nevertheless be issued upon the posting of a bond with the Secretary of Homeland Security under terms and conditions prescribed by the consular officer.
§ 41.12 Classification symbols.
A visa issued to a nonimmigrant alien within one of the classes described in this section shall bear an appropriate visa symbol to show the classification of the alien. The symbol shall be inserted in the space provided on the visa. The following visa symbols shall be used:
| Symbol | Class | Section of law |
|---|---|---|
| A1 | Ambassador, Public Minister, Career Diplomat or Consular Officer, or Immediate Family | 101(a)(15)(A)(i). |
| A2 | Other Foreign Government Official or Employee, or Immediate Family | 101(a)(15)(A)(ii). |
| A3 | Attendant, Servant, or Personal Employee of A1 or A2, or Immediate Family | 101(a)(15)(A)(iii). |
| B1 | Temporary Visitor for Business | 101(a)(15)(B). |
| B2 | Temporary Visitor for Pleasure | 101(a)(15)(B). |
| B1/B2 | Temporary Visitor for Business & Pleasure | 101(a)(15)(B). |
| C1 | Alien in Transit | 101(a)(15)(C). |
| C1/D | Combined Transit and Crewmember Visa | 101(a)(15)(C) and (D). |
| C2 | Alien in Transit to United Nations Headquarters District Under Sec. 11.(3), (4), or (5) of the Headquarters Agreement | 101(a)(15)(C). |
| C3 | Foreign Government Official, Immediate Family, Attendant, Servant or Personal Employee, in Transit | 212(d)(8). |
| D | Crewmember (Sea or Air) | 101(a)(15)(D). |
| E1 | Treaty Trader, Spouse or Child | 101(a)(15)(E)(i). |
| E2 | Treaty Investor, Spouse or Child | 101(a)(15)(E)(ii). |
| E3 | Australian Treaty Alien coming to the United States Solely to Perform Services in a Specialty Occupation | 101(a)(15)(E)(iii). |
| E3D | Spouse or Child of E3 | 101(a)(15)(E)(iii). |
| E3R | Returning E3 | 101(a)(15)(E)(iii). |
| F1 | Student in an academic or language training program | 101(a)(15)(F)(i). |
| F2 | Spouse or Child of F1 | 101(a)(15)(F)(ii). |
| F3 | Canadian or Mexican national commuter student in an academic or language training program | 101(a)(15)(F)(iii). |
| G1 | Principal Resident Representative of Recognized Foreign Government to International Organization, Staff, or Immediate Family | 101(a)(15)(G)(i). |
| G2 | Other Representative of Recognized Foreign Member Government to International Organization, or Immediate Family | 101(a)(15)(G)(ii). |
| G3 | Representative of Nonrecognized or Nonmember Foreign Government to International Organization, or Immediate Family | 101(a)(15)(G)(iii). |
| G4 | International Organization Officer or Employee, or Immediate Family | 101(a)(15)(G)(iv). |
| G5 | Attendant, Servant, or Personal Employee of G1 through G4, or Immediate Family | 101(a)(15)(G)(v). |
| H1B | Alien in a Specialty Occupation (Profession) | 101(a)(15)(H)(i)(b). |
| H1B1 | Chilean or Singaporean National to Work in a Specialty Occupation | 101(a)(15)(H)(i)(b1). |
| H1C | Nurse in health professional shortage area | 101(a)(15)(H)(i)(c). |
| H2A | Temporary Worker Performing Agricultural Services Unavailable in the United States | 101(a)(15)(H)(ii)(a). |
| H2B | Temporary Worker Performing Other Services Unavailable in the United States | 101(a)(15)(H)(ii)(b). |
| H3 | Trainee | 101(a)(15)(H)(iii). |
| H4 | Spouse or Child of Alien Classified H1B/B1/C, H2A/B/R, or H-3 | 101(a)(15)(H)(iv). |
| I | Representative of Foreign Information Media, Spouse and Child | 101(a)(15)(I). |
| J1 | Exchange Visitor | 101(a)(15)(J). |
| J2 | Spouse or Child of J1 | 101(a)(15)(J). |
| K1 | Fiance(e) of United States Citizen | 101(a)(15)(K)(i). |
| K2 | Child of Fiance(e) of U.S. Citizen | 101(a)(15)(K)(iii). |
| K3 | Spouse of U.S. citizen awaiting availability of immigrant visa | 101(a)(15)(K)(ii). |
| K4 | Child of K3 | 101(a)(15)(K)(iii). |
| L1 | Intracompany Transferee (Executive, Managerial, and Specialized Knowledge Personnel Continuing Employment with International Firm or Corporation) | 101(a)(15)(L). |
| L2 | Spouse or Child of Intracompany Transferee | 101(a)(15)(L). |
| M1 | Vocational Student or Other Nonacademic Student | 101(a)(15)(M)(i). |
| M2 | Spouse or Child of M1 | 101(a)(15)(M)(ii). |
| M3 | Canadian or Mexican national commuter student (Vocational student or other nonacademic student) | 101(a)(15)(M)(iii). |
| N8 | Parent of an Alien Classified SK3 or SN3 | 101(a)(15)(N)(i). |
| N9 | Child of N8 or of SK1, SK2, SK4, SN1, SN2 or SN4 | 101(a)(15)(N)(ii). |
| NATO 1 | Principal Permanent Representative of Member State to NATO (including any of its Subsidiary Bodies) Resident in the U.S. and Resident Members of Official Staff; Secretary General, Assistant Secretaries General, and Executive Secretary of NATO; Other Permanent NATO Officials of Similar Rank, or Immediate Family | Art. 12, 5 UST 1094; Art. 20, 5 UST 1098. |
| NATO 2 | Other Representative of member state to NATO (including any of its Subsidiary Bodies) including Representatives, Advisers, and Technical Experts of Delegations, or Immediate Family; Dependents of Member of a Force Entering in Accordance with the Provisions of the NATO Status-of-Forces Agreement or in Accordance with the provisions of the “Protocol on the Status of International Military Headquarters”; Members of Such a Force if Issued Visas | Art. 13, 5 UST 1094; Art. 1, 4 UST 1794; Art. 3, 4 UST 1796. |
| NATO 3 | Official Clerical Staff Accompanying Representative of Member State to NATO (including any of its Subsidiary Bodies), or Immediate Family | Art. 14, 5 UST 1096. |
| NATO 4 | Official of NATO (Other Than Those Classifiable as NATO1), or Immediate Family | Art. 18, 5 UST 1098. |
| NATO 5 | Experts, Other Than NATO Officials Classifiable Under NATO4, Employed in Missions on Behalf of NATO, and their Dependents | Art. 21, 5 UST 1100. |
| NATO 6 | Member of a Civilian Component Accompanying a Force Entering in Accordance with the Provisions of the NATO Status-of-Forces Agreement; Member of a Civilian Component Attached to or Employed by an Allied Headquarters Under the “Protocol on the Status of International Military Headquarters” Set Up Pursuant to the North Atlantic Treaty; and their Dependents | Art. 1, 4 UST 1794; Art. 3, 5 UST 877. |
| NATO 7 | Attendant, Servant, or Personal Employee of NATO1, NATO2, NATO 3, NATO4, NATO5, and NATO6 Classes, or Immediate Family | Arts. 12-20, 5 UST 1094-1098. |
| O1 | Alien with Extraordinary Ability in Sciences, Arts, Education, Business or Athletics | 101(a)(15)(O)(i). |
| O2 | Alien Accompanying and Assisting in the Artistic or Athletic Performance by O1 | 101(a)(15)(O)(ii). |
| O3 | Spouse or Child of O1 or O2 | 101(a)(15)(O)(iii). |
| P1 | Internationally Recognized Athlete or Member of Internationally Recognized Entertainment Group | 101(a)(15)(P)(i). |
| P2 | Artist or Entertainer in a Reciprocal Exchange Program | 101(a)(15)(P)(ii). |
| P3 | Artist or Entertainer in a Culturally Unique Program | 101(a)(15)(P)(iii). |
| P4 | Spouse or Child of P1, P2, or P3 | 101(a)(15)(P)(iv). |
| Q1 | Participant in an International Cultural Exchange Program | 101(a)(15)(Q)(i). |
| R1 | Alien in a Religious Occupation | 101(a)(15)(R). |
| R2 | Spouse or Child of R1 | 101(a)(15)(R). |
| S5 | Certain Aliens Supplying Critical Information Relating to a Criminal Organization or Enterprise | 101(a)(15)(S)(i). |
| S6 | Certain Aliens Supplying Critical Information Relating to Terrorism | 101(a)(15)(S)(ii). |
| S7 | Qualified Family Member of S5 or S6 | 101(a)(15)(S). |
| T1 | Victim of a severe form of trafficking in persons | 101(a)(15)(T)(i). |
| T2 | Spouse of T1 | 101(a)(15)(T)(ii). |
| T3 | Child of T1 | 101(a)(15)(T)(ii). |
| T4 | Parent of a T1 under 21 years of age | 101(a)(15)(T)(ii). |
| T5 | Unmarried Sibling under age 18 of T1 under 21 years of age | 101(a)(15)(T)(ii). |
| T6 | Adult or Minor Child of a Derivative Beneficiary of a T1 | 101(a)(15)(T)(ii). |
| TN | USMCA Professional | 214(e)(1) |
| TD | Spouse or Child of a USMCA | 214(e)(1) |
| U1 | Victim of criminal activity | 101(a)(15)(U)(i). |
| U2 | Spouse of U1 | 101(a)(15)(U)(ii). |
| U3 | Child of U1 | 101(a)(15)(U)(ii). |
| U4 | Parent of U1 under 21 years of age | 101(a)(15)(U)(ii). |
| U5 | Unmarried Sibling under age 18 of U1 under 21 years of age | 101(a)(15)(U)(ii). |
| V1 | Spouse of a Lawful Permanent Resident Alien Awaiting Availability of Immigrant Visa | 101(a)(15)(V)(i) or 101(a)(15)(V)(ii). |
| V2 | Child of a Lawful Permanent Resident Alien Awaiting Availability Of Immigrant Visa | 101(a)(15)(V)(i) or 101(a)(15)(V)(ii). |
| V3 | Child of a V1 or V2 | 203(d) & 101(a)(15)(V)(i) or 101 (a)(15)(V)(ii). |
Subpart C – Foreign Government Officials
§ 41.21 Foreign Officials – General.
(a) Definitions. In addition to pertinent INA definitions, the following definitions are applicable:
(1) Accredited, as used in INA 101(a)(15)(A), 101(a)(15)(G), and 212(d)(8), means an alien holding an official position, other than an honorary official position, with a government or international organization and possessing a travel document or other evidence of intention to enter or transit the United States to transact official business for that government or international organization.
(2) Attendants, as used in INA 101(a)(15)(A)(iii), 101(a)(15)(G)(v), and 212(d)(8), and in the definition of the NATO-7 visa symbol, means aliens paid from the public funds of a foreign government or from the funds of an international organization, accompanying or following to join the principal alien to whom a duty or service is owed.
(3) Immediate family, as used in INA 101(a)(15)(A), 101(a)(15)(G), and 212(d)(8), and in classification under the NATO visa symbols, means:
(i) The spouse who resides regularly in the household of the principal alien and is not a member of some other household;
(ii) Unmarried sons and daughters, whether by blood or adoption, who reside regularly in the household of the principal alien and who are not members of some other household, and provided that such unmarried sons and daughters are:
(A) Under the age of 21, or
(B) Under the age of 23 and in full-time attendance as students at post-secondary educational institutions; and
(iii) Other individuals who:
(A) Reside regularly in the household of the principal alien;
(B) Are not members of some other household;
(C) Are recognized as dependents of the principal alien by the sending government or international organization, as demonstrated by eligibility for rights and benefits, such as the issuance of a diplomatic or official passport, or travel or other allowances; and
(D) Are individually authorized by the Department.
(4) Servants and personal employees, as used in INA 101(a)(15)(A)(iii), 101(a)(15)(G)(v), and 212(d)(8), and in classification under the NATO-7 visa symbol, means aliens employed in a domestic or personal capacity by a principal alien, who are paid from the private funds of the principal alien and seek to enter the United States solely for the purpose of such employment.
(b) Exception to passport validity requirement for aliens in certain A, G, and NATO classes. A nonimmigrant alien for whom the passport requirement of INA 212(a)(7)(B)(i)(I) has not been waived and who is within one of the classes:
(1) Described in INA 101(a)(15)(A)(i) and (ii); or
(2) Described in INA 101(a)(15)(G)(i), (ii), (iii), and (iv); or
(3) NATO-1, NATO-2, NATO-3, NATO-4, or NATO-6 may present a passport which is valid only for a sufficient period to enable the alien to apply for admission at a port of entry prior to its expiration.
(c) Exception to passport validity requirement for foreign government officials in transit. An alien classified C-3 under INA 212(d)(8) needs to present only a valid unexpired visa and a travel document which is valid for entry into a foreign country for at least 30 days from the date of application for admission into the United States.
(d) Grounds for refusal of visas applicable to certain A, C, G, and NATO classes. (1) An A-1 or A-2 visa may not be issued to an alien the Department has determined to be persona non grata.
(2) Only the provisions of INA 212(a) cited below apply to the indicated classes of nonimmigrant visa applicants:
(i) Class A-1: INA 212(a) (3)(A), (3)(B), and (3)(C);
(ii) Class A-2: INA 212(a) (3)(A), (3)(B), and (3)(C);
(iii) Classes C-2 and C-3: INA 212(a) (3)(A), (3)(B), (3)(C), and (7)(B);
(iv) Classes G-1, G-2, G-3, and G-4: INA 212(a) (3)(A), (3)(B), and (3)(C);
(v) Classes NATO-1, NATO-2, NATO-3, NATO-4, and NATO-6: INA 212(a) (3)(A), (3)(B), and (3)(C);
(3) An alien within class A-3 or G-5 is subject to all grounds of refusal specified in INA 212 which are applicable to nonimmigrants in general.
(4) Notwithstanding the visa restrictions imposed by applicable laws and consistent with a provision in such laws providing for a regulatory exception to the visa restrictions contained therein, a visa may be issued to a visa applicant who is otherwise ineligible for a visa under such laws:
(i) To permit the United States to comply with the United Nations Headquarters Agreement and other applicable international obligations; and
(ii) To permit the United States and Burma to operate their diplomatic missions, and to permit the United States to conduct other official United States Government business in Burma.
§ 41.22 Officials of foreign governments.
(a) Criteria for classification of foreign government officials. (1) An alien is classifiable A-1 or A-2 under INA section 101(a)(15)(A) (i) or (ii) if the principal alien:
(i) Has been accredited by a foreign government recognized de jure by the United States;
(ii) Intends to engage solely in official activities for that foreign government while in the United States; and
(iii) Has been accepted by the President, the Secretary of State, or a consular officer acting on behalf of the Secretary of State.
(2) A member of the immediate family of a principal alien is classifiable A-1 or A-2 under INA section 101(a)(15)(A)(i) or (ii) if the principal alien is so classified.
(b) Classification under INA section 101(a)(15)(A). An alien entitled to classification under INA section 101(a)(15)(A) shall be classified under this section even if eligible for another nonimmigrant classification. An exception may be made where an immediate family member is classifiable as A-1 or A-2 under paragraph (a)(2) of this section is also independently classifiable as a principal under INA section 101(a)(15)(G)(i), (ii), (iii), (iv) or in NATO-1 through NATO-6 classification.
(c) Classification of attendants, servants, and personal employees. An alien is classifiable as a nonimmigrant under INA 101(a)(15)(A)(iii) if the consular officer is satisfied that the alien qualifies under those provisions.
(d) Referral to the Department of special cases concerning principal alien applicants. In any case in which there is uncertainty about the applicability of these regulations to a principal alien applicant requesting such nonimmigrant status, the matter shall be immediately referred to the Department for consideration as to whether acceptance of accreditation will be granted.
(e) Change of classification to that of a foreign government official. In the case of an alien in the United States seeking a change of nonimmigrant classification under INA 248 to a classification under INA 101(a)(15)(A) (i) or (ii), the question of acceptance of accreditation is determined by the Department.
(f) Termination of status. The Department may, in its discretion, cease to recognize as entitled to classification under INA 101(a)(15)(A) (i) or (ii) any alien who has nonimmigrant status under that provision.
(g) Classification of foreign government official. A foreign government official or employee seeking to enter the United States temporarily other than as a representative or employee of a foreign government is not classifiable under the provisions of INA 101(a)(15)(A).
(h) Courier and acting courier on official business – (1) Courier of career. An alien regularly and professionally employed as a courier by the government of the country to which the alien owes allegiance is classifiable as a nonimmigrant under INA 101(a)(15)(A)(i), if the alien is proceeding to the United States on official business for that government.
(2) Official acting as courier. An alien not regularly and professionally employed as a courier by the government of the country to which the alien owes allegiance is classifiable as a nonimmigrant under INA 101(a)(15)(A)(ii), if the alien is holding an official position and is proceeding to the United States as a courier on official business for that government.
(3) Nonofficial serving as courier. An alien serving as a courier but not regularly and professionally employed as such who holds no official position with, or is not a national of, the country whose government the alien is serving, shall be classified as a nonimmigrant under INA 101(a)(15)(B).
(i) Official of foreign government not recognized by the United States. An official of a foreign government not recognized de jure by the United States, who is proceeding to or through the United States on an official mission or to an international organization shall be classified as a nonimmigrant under INA 101(a)(15) (B), (C), or (G)(iii).
§ 41.23 Accredited officials in transit.
An accredited official of a foreign government intending to proceed in immediate and continuous transit through the United States on official business for that government is entitled to the benefits of INA 212(d)(8) if that government grants similar privileges to officials of the United States, and is classifiable C-3 under the provisions of INA 101(a)(15)(C). Members of the immediate family, attendants, servants, or personal employees of such an official receive the same classification as the principal alien.
§ 41.24 International organization aliens.
(a) Definition of international organization. “International organization” means:
(1) Any public international organization which has been designated by the President by Executive Order as entitled to enjoy the privileges, exemptions, and immunities provided for in the International Organizations Immunities Act (59 Stat. 669, 22 U.S.C. 288); and
(2) For the purpose of special immigrant status under INA 101(a)(27)(I), INTELSAT or any successor or separated entity thereof.
(b) Aliens coming to international organizations. (1) An alien is classifiable under INA 101(a)(15)(G) if the consular officer is satisfied that the alien is within one of the classes described in that section and seeks to enter or transit the United States in pursuance of official duties. If the purpose of the entry or transit is other than pursuance of official duties, the alien is not classifiable under INA section 101(a)(15)(G).
(2) An alien applying for a visa under the provisions of INA section 101(a)(15)(G) may not be refused solely on the grounds that the applicant is not a national of the country whose government the applicant represents.
(3) An alien seeking to enter the United States as a foreign government representative to an international organization, who is also proceeding to the United States on official business as a foreign government official within the meaning of INA section 101(a)(15)(A), shall be issued a visa under that section, if otherwise qualified.
(4) An alien not classifiable under INA section 101(a)(15)(A) or in NATO-1 through NATO-6 classification but entitled to classification under INA section 101(a)(15)(G) shall be classified under section 101(a)(15)(G), even if also eligible for another nonimmigrant classification. An alien classified under INA section 101(a)(15)(G) as an immediate family member of a principal alien classifiable G-1, G-2, G-3 or G-4, may continue to be so classified even if he or she obtains employment subsequent to his or her initial entry into the United States that would allow classification under INA section 101(a)(15)(A). Such alien shall not be classified in a category other than A or G, even if also eligible for another nonimmigrant classification.
(c) Officers and employees of privatized INTELSAT, their family members and domestic servants. (1) Officers and employees of privatized INTELSAT who both were employed by INTELSAT, and held status under INA 101(a)(15)(G)(iv) for at least six months prior to privatization on July 17, 2001, will continue to be so classifiable for so long as they are officers or employees of INTELSAT or a successor or separated entity thereof.
(2) Aliens who had had G-4 status as officers and employees of INTELSAT but became officers or employees of a successor or separated entity of INTELSAT after at least six months of such employment, but prior to and in anticipation of privatization and subsequent to March 17, 2000, will also continue to be classifiable under INA 101(a)(15)(G)(iv) for so long as that employment continues.
(3) Family members of officers and employees described in paragraphs (c)(1) and (2) of this section who qualify as “immediate family” under § 41.21(a)(3) and who are accompanying or following to join the principal are also classifiable under INA 1010(a)(15)(G)(iv) for so long as the principal is so classified.
(4) Attendants, servants, and personal employees of officers and employees described in paragraphs (c)(1) and (2) of this section are not eligible for classification under INA 101(a)(15)(G)(v), given that the officers and employees described in paragraphs (c)(1) and (2) of this section are not officers or employees of an “international organization” for purposes of INA 101(a)(15)(G).
§ 41.25 NATO representatives, officials, and employees.
(a) Classification. An alien shall be classified under the symbol NATO-1, NATO-2, NATO-3, NATO-4, or NATO-5 if the consular officer is satisfied that the alien is seeking admission to the United States under the applicable provision of the Agreement on the Status of the North Atlantic Treaty Organization, National Representatives and International Staff, or is a member of the immediate family of an alien classified NATO-1 through NATO-5. (See § 41.12 for classes of aliens entitled to classification under each symbol.)
(b) Armed services personnel. Armed services personnel entering the United States in accordance with the provisions of the Agreement Between the Parties to the North Atlantic Treaty Regarding the Status of Their Forces or in accordance with the provisions of the Protocol on the Status of International Military Headquarters Set Up Pursuant to the North Atlantic Treaty may enter the United States under the appropriate treaty waiver of documentary requirements contained in § 41.1 (d) or (e). If a visa is issued it is classifiable under the NATO-2 symbol.
(c) Dependents of armed services personnel. Dependents of armed services personnel referred to in paragraph (b) of this section shall be classified under the symbol NATO-2.
(d) Members of civilian components and dependents. Alien members of a civilian component accompanying a force entering in accordance with the provisions of the NATO Status-of-Forces Agreement, and dependents, or alien members of a civilian component attached to or employed by an Allied Headquarters under the Protocol on the Status of International Military Headquarters, and dependents shall be classified under the symbol NATO-6.
(e) Attendant, servant, or personal employee of an alien classified NATO-1 through NATO-6. An alien attendant, servant, or personal employee of an alien classified NATO-1 through NATO-6, and any member of the immediate family of such attendant, servant, or personal employee, shall be classified under the symbol NATO-7.
§ 41.26 Diplomatic visas.
(a) Definitions. (1) Diplomatic passport means a national passport bearing that title and issued by a competent authority of a foreign government.
(2) Diplomatic visa means any nonimmigrant visa, regardless of classification, which bears that title and is issued in accordance with the regulations of this section.
(3) Equivalent of a diplomatic passport means a passport that:
(i) Is issued by a competent authority that does not issue diplomatic passports and
(ii) Has been designated by the Secretary as the equivalent of a diplomatic passport.
(b) Place of application. With the exception of certain aliens in the United States issued nonimmigrant visas by the Department under the provisions of § 41.111(b), application for a diplomatic visa shall be made at a diplomatic mission or at a consular office authorized to issue diplomatic visas, regardless of the nationality or residence of the applicant.
(c) Classes of aliens eligible to receive diplomatic visas. A nonimmigrant alien who presents a diplomatic passport or its equivalent shall, if otherwise qualified, be eligible to receive a diplomatic visa if:
(1) The nonimmigrant alien is within one of the following categories, irrespective of the classification of the visa under § 41.12:
(i) Heads of states and their alternates;
(ii) Members of a reigning royal family;
(iii) Governors-general, governors, high commissioners, and similar high administrative or executive officers of a territorial unit, and their alternates;
(iv) Cabinet ministers and their assistants holding executive or administrative positions not inferior to that of the head of a departmental division, and their alternates;
(v) Presiding officers of chambers of national legislative bodies;
(vi) Justices of the highest national court of a foreign country;
(vii) Ambassadors, public ministers, other officers of the diplomatic service and consular officers of career;
(viii) Military officers holding a rank not inferior to that of a brigadier general in the United States Army or Air Force and Naval officers holding a rank not inferior to that of a rear admiral in the United States Navy;
(ix) Military, naval, air and other attaché and assistant attaché assigned to a foreign diplomatic mission;
(x) Officers of foreign-government delegations to international organizations so designated by Executive Order;
(xi) Officers of foreign-government delegations to, and officers of, international bodies of an official nature, other than international organizations so designated by Executive Order;
(xii) Officers of a foreign government proceeding to the United States on a temporary basis or through the United States in the performance of their official duties;
(xiii) Officers of foreign-government delegations proceeding to or from a specific international conference of an official nature;
(xiv) Members of the immediate family of a principal alien who is within one of the classes described in paragraphs (c)(1)(i) through (xi) of this section;
(xv) Members of the immediate family accompanying or following to join the principal alien who is within one of the classes described in paragraphs (c)(1)(xii) and (c)(1)(xiii) of this section;
(xvi) Diplomatic couriers proceeding to or through the United States in the performance of their official duties; or
(2) The alien is classifiable as a G-4 and is accompanying any of these officers:
(i) The Secretary General of the United Nations;
(ii) An Under Secretary General of the United Nations;
(iii) An Assistant Secretary General of the United Nations;
(iv) The Administrator or the Deputy Administrator of the United Nations Development Program;
(v) An Assistant Administrator of the United Nations Development Program;
(vi) The Executive Director of the:
(A) United Nations Children’s Fund;
(B) United Nations Institute for Training and Research;
(C) United Nations Industrial Development Organization;
(vii) The Executive Secretary of the:
(A) United Nations Economic Commission for Africa;
(B) United Nations Economic Commission for Asia and the Far East;
(C) United Nations Economic Commission for Latin America;
(D) United Nations Economic Commission for Europe;
(viii) The Secretary General of the United Nations Conference on Trade and Development;
(ix) The Director General of the Latin American Institute for Economic and Social Planning;
(x) The United Nations High Commissioner for Refugees;
(xi) The United Nations Commissioner for Technical Cooperation;
(xii) The Commissioner General of the United Nations Relief and Works Agency for Palestine Refugees in the Near East;
(xiii) Members of the immediate family accompanying or following to join any principal nonimmigrant alien listed in paragraphs (c)(2)(i) through (xii) of this section.
(3) Other individual aliens or classes of aliens are eligible to receive diplomatic visas upon authorization of the Department, the Chief of a U.S. Diplomatic Mission, the Deputy Chief of Mission, the Counselor for Consular Affairs or the principal officer of a consular post not under the jurisdiction of a diplomatic mission.
§ 41.27 Official visas.
(a) Definition. Official visa means any nonimmigrant visa, regardless of classification, which bears that title and is issued in accordance with these regulations.
(b) Place of application. Official visas are ordinarily issued only when application is made in the consular district of the applicant’s residence. When directed by the Department, or in the discretion of the consular officer, official visas may be issued when application is made in a consular district in which the alien is physically present but does not reside. Certain aliens in the United States may be issued official visas by the Department under the provisions of § 41.111(b).
(c) Classes of aliens eligible to receive official visas. (1) A nonimmigrant within one of the following categories who is not eligible to receive a diplomatic visa shall, if otherwise qualified, be eligible to receive an official visa irrespective of classification of the visa under § 41.12:
(i) Aliens within a category described in § 41.26(c)(1) who are ineligible to receive a diplomatic visa because they are not in possession of a diplomatic passport or its equivalent;
(ii) Aliens classifiable under INA section 101(a)(15)(A)(i) or (ii), 8 U.S.C. 1101(a)(15)(A)(i) or (ii);
(iii) Aliens who are classifiable under INA section 101(a)(15)(G)(i), (ii), or (iv), 8 U.S.C. 1101(a)(15)(G)(i), (ii), or (iv);
(iv) Aliens who are classifiable under INA section 101(a)(15)(G)(iii), 8 U.S.C. 1101(a)(15)(G)(iii), as representatives of a foreign government traveling to an international organization so designated by Executive Order, where such foreign government is not a member of the international organization;
(v) Aliens classifiable under INA section 101(a)(15)(C), 8 U.S.C. 1101(a)(15)(C), as nonimmigrants described in INA section 212(d)(8), 8 U.S.C. 1182(d)(8);
(vi) Members and members-elect of national legislative bodies;
(vii) Justices of the lesser national and the highest state courts of a foreign country;
(viii) Officers and employees of national legislative bodies proceeding to or through the United States in the performance of their official duties;
(ix) Administrative, service, and similar employees attached to foreign-government delegations to, and employees of, international bodies of an official nature, other than international organizations so designated by Executive Order, proceeding to or through the United States in the performance of their official duties;
(x) Administrative, service, and similar employees of a foreign government proceeding to the United States on temporary duty or through the United States on a temporary basis in the performance of their official duties;
(xi) Administrative, service, and similar employees attached to foreign-government delegations proceeding to or from a specific international conference of an official nature;
(xii) Officers and employees of foreign governments recognized de jure by the United States who are stationed in foreign contiguous territories or adjacent islands;
(xiii) Members of the immediate family when accompanying or following to join a principal alien who is within one of the classes referred to or described in paragraphs (c)(1)(i) through (xii) of this section;
(2) Other individual aliens or classes of aliens are eligible to receive official visas upon the authorization of the Department, the Chief of a U.S. Diplomatic Mission, the Deputy Chief of Mission, the Counselor for Consular Affairs, or the principal officer of a consular post not under the jurisdiction of a diplomatic mission.
Subpart D – Temporary Visitors
§ 41.31 Temporary visitors for business or pleasure.
(a) Classification. An alien is classifiable as a nonimmigrant visitor for business (B-1) or pleasure (B-2) if the consular officer is satisfied that the alien qualifies under the provisions of INA 101(a)(15)(B), and that:
(1) The alien intends to leave the United States at the end of the temporary stay (consular officers are authorized, if departure of the alien as required by law does not seem fully assured, to require the posting of a bond with the Secretary of Homeland Security in a sufficient sum to ensure that at the end of the temporary visit, or upon failure to maintain temporary visitor status, or any status subsequently acquired under INA 248, the alien will depart from the United States);
(2) The alien has permission to enter a foreign country at the end of the temporary stay; and
(3) Adequate financial arrangements have been made to enable the alien to carry out the purpose of the visit to and departure from the United States.
(b) Definitions. (1) The term “business,” as used in INA 101(a)(15)(B), refers to conventions, conferences, consultations and other legitimate activities of a commercial or professional nature. It does not include local employment or labor for hire. For the purposes of this section building or construction work, whether on-site or in plant, shall be deemed to constitute purely local employment or labor for hire; provided that the supervision or training of others engaged in building or construction work (but not the actual performance of any such building or construction work) shall not be deemed to constitute purely local employment or labor for hire if the alien is otherwise qualified as a B-1 nonimmigrant. An alien seeking to enter as a nonimmigrant for employment or labor pursuant to a contract or other prearrangement is required to qualify under the provisions of § 41.53. An alien of distinguished merit and ability seeking to enter the United States temporarily with the idea of performing temporary services of an exceptional nature requiring such merit and ability, but having no contract or other prearranged employment, may be classified as a nonimmigrant temporary visitor for business.
(2)(i) The term pleasure, as used in INA 101(a)(15)(B) for the purpose of visa issuance, refers to legitimate activities of a recreational character, including tourism, amusement, visits with friends or relatives, rest, medical treatment, and activities of a fraternal, social, or service nature, and does not include obtaining a visa for the primary purpose of obtaining U.S. citizenship for a child by giving birth in the United States.
(ii) Any visa applicant who seeks medical treatment in the United States under this provision shall be denied a visa under INA section 214(b) if unable to establish, to the satisfaction of a consular officer, a legitimate reason why he or she wishes to travel to the United States for medical treatment, that a medical practitioner or facility in the United States has agreed to provide treatment, and that the applicant has reasonably estimated the duration of the visit and all associated costs. The applicant also shall be denied a visa under INA section 214(b) if unable to establish to the satisfaction of the consular officer that he or she has the means derived from lawful sources and intent to pay for the medical treatment and all incidental expenses, including transportation and living expenses, either independently or with the pre-arranged assistance of others.
(iii) Any B nonimmigrant visa applicant who a consular officer has reason to believe will give birth during her stay in the United States is presumed to be traveling for the primary purpose of obtaining U.S. citizenship for the child.
§ 41.32 Nonresident alien Mexican border crossing identification cards; combined border crossing identification cards and B-1/B-2 visitor visas.
(a) Combined B-1/B-2 visitor visa and border crossing identification card (B-1/B-2 Visa/BCC) – (1) Authorization for issuance. Consular officers assigned to a consular office in Mexico designated by the Deputy Assistant Secretary for Visa Services for such purpose may issue a border crossing identification card, as that term is defined in INA 101(a)(6), in combination with a B-1/B-2 nonimmigrant visitor visa (B-1/B-2 Visa/BCC), to a nonimmigrant alien who:
(i) Is a citizen and resident of Mexico;
(ii) Seeks to enter the United States as a temporary visitor for business or pleasure as defined in INA 101(a)(15)(B) for periods of stay not exceeding six months;
(iii) Is otherwise eligible for a B-1 or a B-2 temporary visitor visa.
(2) Procedure for application. Mexican applicants shall apply for a B-1/B-2 Visa/BCC at any U.S. consular office in Mexico designated by the Deputy Assistant Secretary of State for Visa Services pursuant to paragraph (a) of this section to accept such applications. The application shall be submitted electronically on Form DS-160 or, as directed by a consular officer, on Form DS-156. If submitted electronically, it must be signed electronically by clicking the box designated “Sign Application” in the certification section of the application.
(3) Personal appearance. Each applicant shall appear in person before a consular officer to be interviewed regarding eligibility for a visitor visa, unless the consular officer waives personal appearance.
(4) Issuance and format. A B-1/B-2 Visa/BCC issued on or after April 1, 1998, shall consist of a card, Form DSP-150, containing a machine-readable biometric identifier. It shall contain the following data:
(i) Post symbol;
(ii) Number of the card;
(iii) Date of issuance;
(iv) Indicia “B-1/B-2 Visa and Border Crossing Card”;
(v) Name, date of birth, and sex of the person to whom issued; and
(vi) Date of expiration.
(b) Validity. A BCC previously issued by a consular officer in Mexico on Form I-186, Nonresident Alien Mexican Border Crossing Card, or Form I-586, Nonresident Alien Border Crossing Card, is valid until the expiration date on the card (if any) unless previously revoked, but not later than the date, currently October 1, 2001, on which a machine-readable, biometric identifier in the card is required in order for the card to be usable for entry. The BCC portion of a B-1/B-2 Visa/BCC issued to a Mexican national pursuant to provisions of this section contained in the 22 CFR, parts 1 to 299, edition revised as of April 1, 1998 is valid until the date of expiration, unless previously revoked, but not later than the date, currently October 1, 2001, on which a machine-readable, biometric identifier in the card is required in order for the card to be usable for entry.
(c) Revocation. A consular or immigration officer may revoke a BCC issued on Form I-186 or Form I-586, or a B-1/B-2 Visa/BCC under the provisions of § 41.122, or if the consular or immigration officer determines that the alien to whom any such document was issued has ceased to be a resident and/or a citizen of Mexico. Upon revocation, the consular or immigration officer shall notify the issuing consular or immigration office. If the revoked document is a card, the consular or immigration officer shall take possession of the card and physically cancel it under standard security conditions. If the revoked document is a stamp in a passport the consular or immigration officer shall write or stamp “canceled” on the face of the document.
(d) Voidance. (1) The voiding pursuant to INA 222(g) of the visa portion of a B-1/B-2 Visa/BCC issued at any time by a consular officer in Mexico under provisions of this section contained in the 22 CFR, parts 1 to 299, edition revised as of April 1, 1998, also voids the BCC portion of that document.
(2) A BCC issued at any time by a consular officer in Mexico under any provisions of this section contained in the 22 CFR, parts 1 to 299, edition revised as of April 1, 1998, is void if a consular or immigration officer determines that the alien has violated the conditions of the alien’s admission into the United States, including the period of stay authorized by the Secretary of Homeland Security.
(3) A consular or immigration officer shall immediately take possession of a card determined to be void under paragraphs (d) (1) or (2) of this section and physically cancel it under standard security conditions. If the document voided in paragraphs (d) (1) or (2) is in the form of a stamp in a passport the officer shall write or stamp “canceled” across the face of the document.
(e) Replacement. When a B-1/B-2 Visa/BCC issued under the provisions of this section, or a BCC or B-1/B-2 Visa/BCC issued under any provisions of this section contained in the 22 CFR, parts 1 to 299, edition revised as of April 1, 1998, has been lost, mutilated, destroyed, or expired, the person to whom such card was issued may apply for a new B-1/B-2 Visa/BCC as provided in this section.
§ 41.33 Nonresident alien Canadian border crossing identification card (BCC).
(a) Validity of Canadian BCC. A Canadian BCC or the BCC portion of a Canadian B-1/B-2 Visa/BCC issued to a permanent resident of Canada pursuant to provisions of this section contained in the 22 CFR, parts 1 to 299, edition revised as of April 1, 1998, is valid until the date of expiration, if any, unless previously revoked, but not later than the date, currently October 1, 2001, on which a machine readable biometric identifier is required in order for a BCC to be usable for entry.
(b) Revocation of Canadian BCC. A consular or immigration officer may revoke a BCC or a B-1/B-2 Visa/BCC issued in Canada at any time under the provisions of § 41.122, or if the consular or immigration officer determines that the alien to whom any such document was issued has ceased to be a permanent resident of Canada. Upon revocation, the consular or immigration officer shall notify the issuing consular office and if the revoked document is a card, the consular or immigration officer shall take possession of the card and physically cancel it under standard security conditions. If the revoked document is a stamp in a passport the consular or immigration officer shall write or stamp “canceled” on the face of the document.
(c) Voidance. (1) The voiding pursuant to INA 222(g) of the visa portion of a B-1/B-2 Visa/BCC issued at any time by a consular officer in Canada under provisions of this section contained in the 22 CFR, parts 1 to 299, edition revised as of April 1, 1998, also voids the BCC portion of that document.
(2) A BCC issued at any time by a consular officer in Canada under any provisions of this section contained in the 22 CFR, parts 1 to 299, edition revised as of April 1, 1998, is void if a consular or immigration officer finds that the alien has violated the conditions of the alien’s admission into the United States, including the period of stay authorized by the Secretary of Homeland Security.
(3) A consular or immigration officer shall immediately take possession of a card determined to be void under paragraphs (c) (1) or (2) of this section and physically cancel it under standard security conditions. If the document voided under paragraphs (c) (1) or (2) is in the form of a stamp in a passport the officer shall write or stamp “canceled” across the face of the document.
Subpart E – Crewman and Crew-List Visas
§ 41.41 Crewmen.
(a) Alien classifiable as crewman. An alien is classifiable as a nonimmigrant crewman upon establishing to the satisfaction of the consular officer the qualifications prescribed by INA 101(a)(15)(D), provided that the alien has permission to enter some foreign country after a temporary landing in the United States, unless the alien is barred from such classification under the provisions of INA 214(f).
(b) Alien not classifiable as crewman. An alien employed on board a vessel or aircraft in a capacity not required for normal operation and service, or an alien employed or listed as a regular member of the crew in excess of the number normally required, shall not be classified as a crewman.
§ 41.42 [Reserved]
Subpart F – Business and Media Visas
§ 41.51 Treaty trader, treaty investor, or treaty alien in a specialty occupation.
(a) Treaty trader – (1) Classification. An alien is classifiable as a nonimmigrant treaty trader (E-1) if the consular officer is satisfied that the alien qualifies under the provisions of INA 101(a)(15)(E)(i) and that the alien:
(i) Will be in the United States solely to carry on trade of a substantial nature, which is international in scope, either on the alien’s behalf or as an employee of a foreign person or organization engaged in trade, principally between the United States and the foreign state of which the alien is a national, (consideration being given to any conditions in the country of which the alien is a national which may affect the alien’s ability to carry on such substantial trade); and
(ii) Intends to depart from the United States upon the termination of E-1 status.
(2) Employee of treaty trader. An alien employee of a treaty trader may be classified E-1 if the employee is in or is coming to the United States to engage in duties of an executive or supervisory character, or, if employed in a lesser capacity, the employee has special qualifications that make the services to be rendered essential to the efficient operation of the enterprise. The employer must be:
(i) A person having the nationality of the treaty country, who is maintaining the status of treaty trader if in the United States or, if not in the United States, would be classifiable as a treaty trader; or
(ii) An organization at least 50% owned by persons having the nationality of the treaty country who are maintaining nonimmigrant treaty trader status if residing in the United States or, if not residing in the United States, who would be classifiable as treaty traders.
(3) Spouse and children of treaty trader. The spouse and children of a treaty trader accompanying or following to join the principal alien are entitled to the same classification as the principal alien. The nationality of a spouse or child of a treaty trader is not material to the classification of the spouse or child under the provisions of INA 101(a)(15)(E).
(4) Representative of foreign information media. Representatives of foreign information media shall first be considered for possible classification as nonimmigrants under the provisions of INA 101(a)(15)(I), before consideration is given to their possible classification as treaty traders under the provisions of INA 101(a)(15)(E) and of this section.
(5) Treaty country. A treaty country is for purposes of this section a foreign state with which a qualifying Treaty of Friendship, Commerce, and Navigation or its equivalent exists with the United States. A treaty country includes a foreign state that is accorded treaty visa privileges under INA 101(a)(15)(E) by specific legislation (other than the INA).
(6) Nationality of the treaty country. The authorities of the foreign state of which the alien claims nationality determine the nationality of an individual treaty trader. In the case of an organization, ownership must be traced as best as is practicable to the individuals who ultimately own the organization.
(7) Trade. The term “trade” as used in this section means the existing international exchange of items of trade for consideration between the United States and the treaty country. Existing trade includes successfully negotiated contracts binding upon the parties that call for the immediate exchange of items of trade. This exchange must be traceable and identifiable. Title to the trade item must pass from one treaty party to the other.
(8) Item of trade. Items that qualify for trade within these provisions include but are not limited to goods, services, technology, monies, international banking, insurance, transportation, tourism, communications, and some news gathering activities.
(9) Substantial trade. Substantial trade for the purposes of this section entails the quantum of trade sufficient to ensure a continuous flow of trade items between the United States and the treaty country. This continuous flow contemplates numerous exchanges over time rather than a single transaction, regardless of the monetary value. Although the monetary value of the trade item being exchanged is a relevant consideration, greater weight is given to more numerous exchanges of larger value. In the case of smaller businesses, an income derived from the value of numerous transactions that is sufficient to support the treaty trader and his or her family constitutes a favorable factor in assessing the existence of substantial trade.
(10) Principal trade. Trade shall be considered to be principal trade between the United States and the treaty country when over 50% of the volume of international trade of the treaty trader is conducted between the United States and the treaty country of the treaty trader’s nationality.
(11) Executive or supervisory character. The executive or supervisory element of the employee’s position must be a principal and primary function of the position and not an incidental or collateral function. Executive and/or supervisory duties grant the employee ultimate control and responsibility for the enterprise’s overall operation or a major component thereof.
(i) An executive position provides the employee great authority to determine policy of and direction for the enterprise.
(ii) A position primarily of supervisory character grants the employee supervisory responsibility for a significant proportion of an enterprise’s operations and does not generally involve the direct supervision of low-level employees.
(12) Special qualifications. Special qualifications are those skills and/or aptitudes that an employee in a lesser capacity brings to a position or role that are essential to the successful or efficient operation of the enterprise.
(i) The essential nature of the alien’s skills to the employing firm is determined by assessing the degree of proven expertise of the alien in the area of operations involved, the uniqueness of the specific skill or aptitude, the length of experience and/or training with the firm, the period of training or other experience necessary to perform effectively the projected duties, and the salary the special qualifications can command. The question of special skills and qualifications must be determined by assessing the circumstances on a case-by-case basis.
(ii) Whether the special qualifications are essential will be assessed in light of all circumstances at the time of each visa application on a case-by-case basis. A skill that is unique at one point may become commonplace at a later date. Skills required to start up an enterprise may no longer be essential after initial operations are complete and are running smoothly. Some skills are essential only in the short-term for the training of locally hired employees. Long-term essentiality might, however, be established in connection with continuous activities in such areas as product improvement, quality control, or the provision of a service not generally available in the United States.
(13) Labor disputes. Citizens of Canada or Mexico shall not be entitled to classification under this section if the Secretary of Homeland Security and the Secretary of Labor have certified that:
(i) There is in progress a strike or lockout in the course of a labor dispute in the occupational classification at the place or intended place of employment; and
(ii) The alien has failed to establish that the alien’s entry will not affect adversely the settlement of the strike or lockout or the employment of any person who is involved in the strike or lockout.
(b) Treaty investor – (1) Classification. An alien is classifiable as a nonimmigrant treaty investor (E’2) if the consular officer is satisfied that the alien qualifies under the provisions of INA 101(a)(15)(E)(ii) and that the alien:
(i) Has invested or is actively in the process of investing a substantial amount of capital in bona fide enterprise in the United States, as distinct from a relatively small amount of capital in a marginal enterprise solely for the purpose of earning a living; and
(ii) Is seeking entry solely to develop and direct the enterprise; and
(iii) Intends to depart from the United States upon the termination of E’2 status.
(2) Employee of treaty investor. An alien employee of a treaty investor may be classified E-2 if the employee is in or is coming to the United States to engage in duties of an executive or supervisory character, or, if employed in a lesser capacity, the employee has special qualifications that make the services to be rendered essential to the efficient operation of the enterprise. The employer must be:
(i) A person having the nationality of the treaty country, who is maintaining the status of treaty investor if in the United States or, if not in the United States, who would be classifiable as a treaty investor; or
(ii) An organization at least 50% owned by persons having the nationality of the treaty country who are maintaining nonimmigrant treaty investor status if residing in the United States or, if not residing in the United States, who would be classifiable as treaty investors.
(3) Spouse and children of treaty investor. The spouse and children of a treaty investor accompanying or following to join the principal alien are entitled to the same classification as the principal alien. The nationality of a spouse or child of a treaty investor is not material to the classification of the spouse or child under the provisions of INA 101(a)(15)(E).
(4) Representative of foreign information media. Representatives of foreign information media shall first be considered for possible classification as nonimmigrants under the provisions of INA 101(a)(15)(I), before consideration is given to their possible classification as nonimmigrants under the provisions of INA 101(a)(15)(E) and of this section.
(5) Treaty country. A treaty country is for purposes of this section a foreign state with which a qualifying Treaty of Friendship, Commerce, and Navigation or its equivalent exists with the United States. A treaty country includes a foreign state that is accorded treaty visa privileges under INA 101(a)(15)(E) by specific legislation (other than the INA).
(6) Nationality of the treaty country. The authorities of the foreign state of which the alien claims nationality determine the nationality of an individual treaty investor. In the case of an organization, ownership must be traced as best as is practicable to the individuals who ultimately own the organization.
(7) Investment. Investment means the treaty investor’s placing of capital, including funds and other assets, at risk in the commercial sense with the objective of generating a profit. The treaty investor must be in possession of and have control over the capital invested or being invested. The capital must be subject to partial or total loss if investment fortunes reverse. Such investment capital must be the investor’s unsecured personal business capital or capital secured by personal assets. Capital in the process of being invested or that has been invested must be irrevocably committed to the enterprise. The alien has the burden of establishing such irrevocable commitment given to the particular circumstances of each case. The alien may use any legal mechanism available, such as by placing invested funds in escrow pending visa issuance, that would not only irrevocably commit funds to the enterprise but that might also extend some personal liability protection to the treaty investor.
(8) Bona fide enterprise. The enterprise must be a real and active commercial or entrepreneurial undertaking, producing some service or commodity for profit and must meet applicable legal requirements for doing business in the particular jurisdiction in the United States.
(9) Substantial amount of capital. A substantial amount of capital constitutes that amount that is:
(i)(A) Substantial in the proportional sense, i.e., in relationship to the total cost of either purchasing an established enterprise or creating the type of enterprise under consideration;
(B) Sufficient to ensure the treaty investor’s financial commitment to the successful operation of the enterprise; and
(C) Of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise.
(ii) Whether an amount of capital is substantial in the proportionality sense is understood in terms of an inverted sliding scale; i.e., the lower the total cost of the enterprise, the higher, proportionately, the investment must be to meet these criteria.
(10) Marginal enterprise. A marginal enterprise is an enterprise that does not have the present or future capacity to generate more than enough income to provide a minimal living for the treaty investor and his or her family. An enterprise that does not have the capacity to generate such income but that has a present or future capacity to make a significant economic contribution is not a marginal enterprise. The projected future capacity should generally be realizable within five years from the date the alien commences normal business activity of the enterprise.
(11) Solely to develop and direct. The business or individual treaty investor does or will develop and direct the enterprise by controlling the enterprise through ownership of at least 50% of the business, by possessing operational control through a managerial position or other corporate device, or by other means.
(12) Executive or supervisory character. The executive or supervisory element of the employee’s position must be a principal and primary function of the position and not an incidental or collateral function. Executive and/or supervisory duties grant the employee ultimate control and responsibility for the enterprise’s overall operation or a major component thereof.
(i) An executive position provides the employee great authority to determine policy of and direction for the enterprise.
(ii) A position primarily of supervisory character grants the employee supervisory responsibility for a significant proportion of an enterprise’s operations and does not generally involve the direct supervision of low-level employees.
(13) Special qualifications. Special qualifications are those skills and/or aptitudes that an employee in a lesser capacity brings to a position or role that are essential to the successful or efficient operation of the enterprise.
(i) The essential nature of the alien’s skills to the employing firm is determined by assessing the degree of proven expertise of the alien in the area of operations involved, the uniqueness of the specific skill or aptitude, the length of experience and/or training with the firm, the period of training or other experience necessary to perform effectively the projected duties, and the salary the special qualifications can command. The question of special skills and qualifications must be determined by assessing the circumstances on a case-by-case basis.
(ii) Whether the special qualifications are essential will be assessed in light of all circumstances at the time of each visa application on a case-by-case basis. A skill that is unique at one point may become commonplace at a later date. Skills required to start up an enterprise may no longer be essential after initial operations are complete and are running smoothly. Some skills are essential only in the short-term for the training of locally hired employees. Long-term essentiality might, however, be established in connection with continuous activities in such areas as product improvement, quality control, or the provision of a service not generally available in the United States.
(14) Labor disputes. Citizens of Canada or Mexico shall not be entitled to classification under this section if the Secretary of Homeland Security and the Secretary of Labor have certified that:
(i) There is in progress a strike or lockout in the course of a labor dispute in the occupational classification at the place or intended place of employment; and
(ii) The alien has failed to establish that the alien’s entry will not affect adversely the settlement of the strike or lockout or the employment of any person who is involved in the strike or lockout.
(c) Nonimmigrant E-3 treaty aliens in specialty occupations – (1) Classification. An alien is classifiable as a nonimmigrant treaty alien in a specialty occupation if the consular officer is satisfied that the alien qualifies under the provisions of INA 101(a)(15)(E)(iii) and that the alien:
(i) Possesses the nationality of the country statutorily designated for treaty aliens in specialty occupation status;
(ii) Satisfies the requirements of INA 214(i)(1) and the corresponding regulations defining specialty occupation promulgated by the Department of Homeland Security;
(iii) Presents to a consular officer a copy of the Labor Condition Application signed by the employer and approved by the Department of Labor, and meeting the attestation requirements of INA Section 212(t)(1);
(iv) Presents to a consular officer evidence of the alien’s academic or other qualifying credentials as required under INA 214(i)(1), and a job offer letter or other documentation from the employer establishing that upon entry into the United States the applicant will be engaged in qualifying work in a specialty occupation, as defined in paragraph (c)(1)(ii) of this section, and that the alien will be paid the actual or prevailing wage referred to in INA 212(t)(1);
(v) Has a visa number allocated under INA 214(g)(11)(B); and,
(vi) Intends to depart upon the termination of E-3 status.
(2) Spouse and children of treaty alien in a specialty occupation. The spouse and children of a treaty alien in a specialty occupation accompanying or following to join the principal alien are, if otherwise admissible, entitled to the same classification as the principal alien. A spouse or child of a principal E-3 treaty alien need not have the same nationality as the principal in order to be classifiable under the provisions of INA 101(a)(15)(E). Spouses and children of E-3 principals are not subject to the numerical limitations of INA 214(g)(11)(B).
§ 41.52 Information media representative.
(a) Representative of foreign press, radio, film, or other information media. An alien is classifiable as a nonimmigrant information media representative if the consular officer is satisfied that the alien qualifies under the provisions of INA 101(a)(15)(I) and is a representative of a foreign press, radio, film, or other information medium having its home office in a foreign country, the government of which grants reciprocity for similar privileges to representatives of such a medium having home offices in the United States.
(b) Classification when applicant eligible for both I visa and E visa. An alien who will be engaged in foreign information media activities in the United States and meets the criteria set forth in paragraph (a) of this section shall be classified as a nonimmigrant under INA 101(a)(15)(I) even if the alien may also be classifiable as a nonimmigrant under the provisions of INA 101(a)(15)(E).
(c) Spouse and children of information media representative. The spouse or child of an information media representative is classifiable under INA 101(a)(15)(I) if accompanying or following to join the principal alien.
§ 41.53 Temporary workers and trainees.
(a) Requirements for H classification. An alien shall be classifiable under INA 101(a)(15)(H) if:
(1) The consular officer is satisfied that the alien qualifies under that section; and either
(2) With respect to the principal alien, the consular officer has received official evidence of the approval by DHS, or by the Department of Labor in the case of temporary agricultural workers, of a petition to accord such classification or of the extension by DHS of the period of authorized entry in such classification; or
(3) The consular officer is satisfied the alien is the spouse or child of an alien so classified and is accompanying or following to join the principal alien.
(b) Petition approval. The approval of a petition by the Department of Homeland Security or by the Department of Labor does not establish that the alien is eligible to receive a nonimmigrant visa.
(c) Validity of visa. The period of validity of a visa issued on the basis of paragraph (a) to this section must not exceed the period indicated in the petition, notification, or confirmation required in paragraph (a)(2) of this section.
(d) Alien not entitled to H classification. The consular officer must suspend action on this alien’s application and submit a report to the approving DHS office if the consular officer knows or has reason to believe that an alien applying for a visa under INA 101(a)(15)(H) is not entitled to the classification as approved.
(e) “Trainee” defined. The term Trainee, as used in INA 101(a)(15)(H)(iii), means a nonimmigrant alien who seeks to enter the United States temporarily at the invitation of an individual, organization, firm, or other trainer for the purpose of receiving instruction in any field of endeavor (other than graduate medical education or training), including agriculture, commerce, communication, finance, government, transportation, and the professions.
(f) Former exchange visitor. Former exchange visitors who are subject to the 2-year residence requirement of INA 212(e) are ineligible to apply for visas under INA 101(a)(15)(H) until they have fulfilled the residence requirement or obtained a waiver of the requirement.
§ 41.54 Intracompany transferees (executives, managers, and specialized knowledge employees).
(a) Requirements for L classification. An alien shall be classifiable under the provisions of INA section 101(a)(15)(L) if:
(1) The consular officer is satisfied that the alien qualifies under that section; and either
(2) In the case of an individual petition, the consular officer has received official evidence of the approval by DHS of a petition to accord such classification or of the extension by DHS of the period of authorized stay in such classification; or
(3) In the case of a blanket petition,
(i) The alien has presented to the consular officer official evidence of the approval by DHS of a blanket petition listing only those intracompany relationships and positions found to qualify under INA section 101(a)(15)(L);
(ii) The alien is otherwise eligible for L-1 classification pursuant to the blanket petition; and,
(iii) The alien requests that he or she be accorded such classification for the purpose of being transferred to, or remaining in, qualifying positions identified in such blanket petition; or
(4) The consular officer is satisfied the alien is the spouse or child of an alien so classified and is accompanying or following to join the principal alien.
(b) Petition approval. The approval of a petition by DHS does not establish that the alien is eligible to receive a nonimmigrant visa.
(c) Alien not entitled to L-1 classification under individual petition. The consular officer must suspend action on the alien’s application and submit a report to the approving DHS office if the consular officer knows or has reason to believe that an alien applying for a visa as the beneficiary of an approved individual petition under INA section 101(a)(15)(L) is not entitled to such classification as approved.
(d) Labor disputes. Citizens of Canada or Mexico shall not be entitled to classification under this section if the Secretary of Homeland Security and the Secretary of Labor have certified that:
(1) There is in progress a strike or lockout in the course of a labor dispute in the occupational classification at the place or intended place of employment; and,
(2) The alien has failed to establish that the alien’s entry will not affect adversely the settlement of the strike or lockout or the employment of any person who is involved in the strike or lockout.
(e) Alien not entitled to L-1 classification under blanket petition. The consular officer shall deny L classification based on a blanket petition if the documentation presented by the alien claiming to be a beneficiary thereof does not establish to the satisfaction of the consular officer that
(1) The alien has been continuously employed by the same employer, an affiliate or a subsidiary thereof, for one year within the three years immediately preceding the application for the L visa;
(2) The alien was rendering services in a capacity that is managerial, executive, or involves specialized knowledge throughout that year; or
(3) The alien is destined to render services in such a capacity, as identified in the petition and in an organization listed in the petition.
(f) Former exchange visitor. Former exchange visitors who are subject to the two-year foreign residence requirement of INA section 212(e) are ineligible to apply for visas under INA section 101(a)(15)(L) until they have fulfilled the residence requirement or obtained a waiver of the requirement.
§ 41.55 Aliens with extraordinary ability.
(a) Requirements for O classification. An alien shall be classifiable under the provisions of INA 101(a)(15)(O) if:
(1) The consular officer is satisfied that the alien qualifies under the provisions of that section; and either
(2) With respect to the principal alien, the consular officer has received official evidence of the approval by DHS of a petition to accord such classification or of the extension by DHS of the period of authorized stay in such classification; or
(3) The consular officer is satisfied the alien is the spouse or child of an alien so classified and is accompanying or following to join the principal alien.
(b) Approval of visa. The approval of a petition by DHS does not establish that the alien is eligible to receive a nonimmigrant visa.
(c) Validity of visa. The period of validity of a visa issued on the basis of paragraph (a) to this section must not exceed the period indicated in the petition, notification, or confirmation required in paragraph (a)(2) of this section.
(d) Alien not entitled to O classification. The consular officer must suspend action on the alien’s application and submit a report to the approving DHS office if the consular officer knows or has reason to believe that an alien applying for a visa under INA 101(a)(15)(O) is not entitled to the classification as approved.
§ 41.56 Athletes, artists and entertainers.
(a) Requirements for P classification. An alien shall be classifiable under the provisions of INA 101(a)(15)(P) if:
(1) The consular officer is satisfied that the alien qualifies under the provisions of that section; and either
(2) With respect to the principal alien, the consular officer has received official evidence of the approval by DHS of a petition to accord such classification or of the extension by DHS of the period of authorized stay in such classification; or
(3) The consular officer is satisfied the alien is the spouse or child of an alien so classified and is accompanying or following to join the principal alien.
(b) Approval of visa. The approval of a petition by DHS does not establish that the alien is eligible to receive a nonimmigrant visa.
(c) Validity of visa. The period of validity of a visa issued on the basis of paragraph (a) to this section must not exceed the period indicated in the petition, confirmation, or extension of stay required in paragraph (a)(2) of this section.
(d) Alien not entitled to P classification. The consular officer must suspend action on the alien’s application and submit a report to the approving DHS office if the consular officer knows or has reason to believe that an alien applying for a visa under INA 101(a)(15)(P) is not entitled to the classification as approved.
§ 41.57 International cultural exchange visitors.
(a) International cultural exchange visitors – (1) Requirements for classification under INA section 101(a)(15)(Q)(i). A consular officer may classify an alien under the provisions of INA 101(a)(15)(Q)(i) if:
(i) The consular officer is satisfied that the alien qualifies under the provisions of that section, and
(ii) The consular officer has received official evidence of the approval by DHS of a petition or the extension by DHS of the period of authorized stay in such classification.
(2) Approval of petition. DHS approval of a petition does not establish that the alien is eligible to receive a nonimmigrant visa.
(3) Validity of visa. The period of validity of a visa issued on the basis of this paragraph (a) must not exceed the period indicated in the petition, notification, or confirmation required in paragraph (a)(2) of this section.
(4) Alien not entitled to Q classification. The consular officer must suspend action on the alien’s application and submit a report to the approving DHS office if the consular officer knows or has reason to believe that an alien does not qualify under INA section 101(a)(15)(Q)(i).
(b) [Reserved]
§ 41.58 Aliens in religious occupations.
(a) Requirements for “R” classification. An alien shall be classifiable under the provisions of INA 101(a)(15)(R) if:
(1) The consular officer is satisfied that the alien qualifies under the provisions of that section; and
(2) With respect to the principal alien, the consular officer has received official evidence of the approval by USCIS of a petition to accord such classification or the extension by USCIS of the period of authorized stay in such classification; or
(3) The alien is the spouse or child of an alien so classified and is accompanying or following to join the principal alien.
(b) Petition approval. The approval of a petition by USCIS does not establish that the alien is eligible to receive a nonimmigrant visa.
(c) Validity of visa. The period of validity of a visa issued on the basis of paragraph (a) to this section must not precede or exceed the period indicated in the petition, notification, or confirmation required in paragraph (a)(2) of this section.
(d) Aliens not entitled to classification under INA 101(a)(15)(R). The consular officer must suspend action on the alien’s application and submit a report to the approving USCIS office if the consular officer knows or has reason to believe that an alien applying for a visa under INA 101(a)(15)(R) is not entitled to the classification as approved.
§ 41.59 Professionals under the United States-Mexico-Canada Agreement (USMCA).
(a) Requirements for classification as a USMCA professional. An alien shall be classifiable under the provisions of INA 214(e) if:
(1) The consular officer is satisfied that the alien qualifies under the provisions of that section; and
(2) The alien shall have presented to the consular officer sufficient evidence of an offer of employment in the United States requiring employment of a person in a professional capacity consistent with Section D and Appendix 2 of Annex 16-A of Chapter 16 of the USMCA and sufficient evidence that the alien possesses the credentials of that profession as listed in said appendix; or
(3) The alien is the spouse or child of an alien so classified in accordance with paragraph (a)(2) of this section and is accompanying or following to join the principal alien.
(b) Visa validity. The period of validity of a visa issued pursuant to paragraph (a) of this section may not exceed the period established on a reciprocal basis.
(c) Temporary entry. Temporary entry means an entry into the United States without the intent to establish permanent residence. The alien must satisfy the consular officer that the proposed stay is temporary. A temporary period has a reasonable, finite end that does not equate to permanent residence. The circumstances surrounding an application should reasonably and convincingly indicate that the alien’s temporary work assignment in the United States will end predictably and that the alien will depart upon completion of the assignment.
(d) Labor disputes. Citizens of Canada or Mexico shall not be entitled to classification under this section if the Secretary of Homeland Security and the Secretary of Labor have certified that:
(1) There is in progress a strike or lockout in the course of a labor dispute in the occupational classification at the place or intended place of employment; and
(2) The alien has failed to establish that the alien’s entry will not affect adversely the settlement of the strike or lockout or the employment of any person who is involved in the strike or lockout.
Subpart G – Students and Exchange Visitors
§ 41.61 Students – academic and nonacademic.
(a) Definitions – (1) Academic, in INA 101(a)(15)(F), refers to an established college, university, seminary, conservatory, academic high school, elementary school, or other academic institution, or a language training program.
(2) Nonacademic, in INA 101(a)(15)(M), refers to an established vocational or other recognized nonacademic institution (other than a language training program).
(b) Classification. (1) An alien is classifiable under INA 101(a)(15)(F) (i) or (iii) or INA 101(a)(15)(M) (i) or (iii) if the consular officer is satisfied that the alien qualifies under one of those sections, and:
(i) The alien has been accepted for attendance for the purpose of pursuing a full course of study, or, for students classified under INA 101(a)(15) (F)(iii) and (M)(iii) Border Commuter Students, full or part-time course of study, in an academic institution approved by the Secretary of Homeland Security for foreign students under INA 101(a)(15)(F)(i) or a nonacademic institution approved under 101(a)(15)(M)(i). The alien has presented a SEVIS Form I-20, Form I-20A-B/I-20ID. Certificate of Eligibility For Nonimmigrant Student Status – For Academic and Language Students, or Form I-20M-N/I-20ID, Certificate of Eligibility for Nonimmigrant Student Status – For Vocational Students, properly completed and signed by the alien and a designated official as prescribed in regulations found at 8 CFR 214.2(F) and 214.2(M);
(ii) The alien possesses sufficient funds to cover expenses while in the United States or can satisfy the consular officer that other arrangements have been made to meet those expenses;
(iii) The alien, unless coming to participate exclusively in an English language training program, has sufficient knowledge of the English language to undertake the chosen course of study or training. If the alien’s knowledge of English is inadequate, the consular officer may nevertheless find the alien so classifiable if the accepting institution offers English language training, and has accepted the alien expressly for a full course of study (or part-time course of study for Border Commuter Students) in a language with which the alien is familiar, or will enroll the alien in a combination of courses and English instruction which will constitute a full course of study if required; and
(iv) The alien intends, and will be able, to depart upon termination of student status.
(2) An alien otherwise qualified for classification as a student, who intends to study the English language exclusively, may be classified as a student under INA 101(a) (15) (F) (i) even though no credits are given by the accepting institution for such study. The accepting institution, however, must offer a full course of study in the English language and must accept the alien expressly for such study.
(3) The alien spouse and minor children of an alien who has been or will be issued a visa under INA 101(a) (15) (F) (i) or 101(a) (15) (M) (i) may receive nonimmigrant visas under INA 101(a) (15) (F) (ii) or 101(a) (15) (M) (ii) if the consular officer is satisfied that they will be accompanying or following to join the principal alien; that sufficient funds are available to cover their expenses in the United States; and, that they intend to leave the United States upon the termination of the status of the principal alien.
(c) Posting of bond. In borderline cases involving an alien otherwise qualified for classification under INA 101(a) (15) (F), the consular officer is authorized to require the posting of a bond with the Secretary of Homeland Security in a sum sufficient to ensure that the alien will depart upon the conclusion of studies or in the event of failure to maintain student status.
(d) Electronic verification and notification. A student’s acceptance documentation must be verified by a consular official’s review of the SEVIS data in the Consolidated Consular Database or via direct access to SEVIS or ISEAS prior to the issuance of an F-1, F-2, M-1 or M-3 visa. Evidence of the payment of any applicable fees, if not presented with other documentation, may also be verified through the Consolidated Consular Database or direct access to SEVIS. Upon issuance of an F or M visa, notification of such issuance must be entered into the SEVIS database.
§ 41.62 Exchange visitors.
(a) J-1 classification. An alien is classifiable as an exchange visitor if qualified under the provisions of INA 101(a) (15) (J) and the consular officer is satisfied that the alien:
(1) Has been accepted to participate, and intends to participate, in an exchange visitor program designated by the Bureau of Education and Cultural Affairs, Department of State, as evidenced by the presentation of a properly executed Form DS-2019, Certificate of Eligibility for Exchange Visitor (J-1) Status;
(2) Has sufficient funds to cover expenses or has made other arrangements to provide for expenses;
(3) Has sufficient knowledge of the English language to undertake the program for which selected, or, except for an alien coming to participate in a graduate medical education or training program, the sponsoring organization is aware of the language deficiency and has nevertheless indicated willingness to accept the alien; and
(4) Meets the requirements of INA 212(j) if coming to participate in a graduate medical education or training program.
(5) Electronic verification and notification. An exchange visitor’s acceptance documentation and payment of any applicable fees must be verified by a consular official’s review of the SEVIS database or via direct access to SEVIS or ISEAS prior to the issuance of a J-1 or J-2 visa. Evidence of the payment of any applicable fees, if not presented with other documentation, may also be verified through the Consolidated Consular Database or direct access to SEVIS. Upon issuance of a J-1 or J-2 visa, notification of such issuance must be entered into the SEVIS database.
(b) J-2 Classification. The spouse or minor child of an alien classified J-1 is classifiable J-2.
(c) Applicability of INA 212(e). (1) An alien is subject to the 2-year foreign residence requirement of INA 212(e) if:
(i) The alien’s participation in one or more exchange programs was wholly or partially financed, directly or indirectly, by the U.S. Government or by the government of the alien’s last legal permanent residence; or
(ii) At the time of the issuance of an exchange visitor visa and admission to the United States, or, if not required to obtain a nonimmigrant visa, at the time of admission as an exchange visitor, or at the time of acquisition of such status after admission, the alien is a national and resident or, if not a national, a legal permanent resident (or has status equivalent thereto) of a country which the Secretary of State has designated, through publication by public notice in the
(iii) The alien acquires exchange visitor status in order to receive graduate medical education or training in the United States.
(2) For the purposes of this paragraph the terms financed directly and financed indirectly are defined as set forth in section § 514.1 of chapter V.
(3) The country in which 2 years’ residence and physical presence will satisfy the requirements of INA 212(e) in the case of an alien determined to be subject to such requirements is the country of which the alien is a national and resident, or, if not a national, a legal permanent resident (or has status equivalent thereto).
(4) If an alien is subject to the 2-year foreign residence requirement of INA 212(e), the spouse or child of that alien, accompanying or following to join the alien, is also subject to that requirement if admitted to the United States pursuant to INA 101(a) (15) (J) or if status is acquired pursuant to that section after admission.
(d) Notification to alien concerning 2-year foreign residence requirement. Before the consular officer issues an exchange visitor visa, the consular officer must inform the alien whether the alien will be subject to the 2-year residence and physical presence requirement of INA 212(e) if admitted to the United States under INA 101(a) (15) (J) and, if so, the country in which 2 years’ residence and physical presence will satisfy the requirement.
§ 41.63 Two-year home-country physical presence requirement.
(a) Statutory basis for rule. Section 212(e) of the Immigration and Nationality Act, as amended, provides in substance as follows:
(1) No person admitted under Section 101(a) (15)(J) or acquiring such status after admission:
(i) Whose participation in the program for which he came to the United States was financed in whole or in part, directly or indirectly, by an agency of the United States Government or by the government of the country of his nationality or of his last legal permanent residence;
(ii) Who at the time of admission or acquisition of status under 101(a)(15)(J) was a national or legal permanent resident of a country which the Secretary of State, pursuant to regulations prescribed by him, had designated as clearly requiring the services of persons engaged in the field of specialized knowledge or skill in which the alien was engaged [See the most recent “Revised Exchange Visitor Skills List”, at http://exchanges.state.gov/education/jexchanges/participation/skills_list.pdf; or
(iii) Who came to the United States or acquired such status in order to receive graduate medical education or training, shall be eligible to apply for an immigrant visa, or for permanent residence, or for a nonimmigrant visa under section 101(a)(15)(H) or section 101(a)(15)(L) until is established that such person has resided and been physically present in the country of his nationality or his last legal permanent residence for an aggregate of at least two years following departure from the United States.
(2) Upon the favorable recommendation of the Secretary of State, pursuant to the request of an interested United States Government agency (or in the case of an alien who is a graduate of a foreign medical school pursuing a program in graduate medical education or training, pursuant to the request of a State Department of Public Health, or its equivalent), or of the Secretary of Homeland Security after the latter has determined that departure from the United States would impose exceptional hardship upon the alien’s spouse or child (if such spouse or child is a citizen of the United States or a legal permanent resident alien), or that the alien cannot return to the country of his nationality or last legal permanent residence because he would be subject to persecution on account of race, religion, or political opinion, the Secretary of Homeland Security may waive the requirement of such two-year foreign residence abroad in the case of any alien whose admission to the United States is found by the Secretary of Homeland Security to be in the public interest except that in the case of a waiver requested by a State Department of Public Health, or its equivalent, the waiver shall be subject to the requirements of section 214(l) of the Immigration and Nationality Act (8 U.S.C. 1184).
(3) Except in the case of an alien who is a graduate of a foreign medical school pursuing a program in graduate medical education or training, the Secretary of Homeland Security, upon the favorable recommendation of the Secretary of State, may also waive such two-year foreign residence requirement in any case in which the foreign country of the alien’s nationality or last legal permanent residence has furnished the Secretary of State a statement in writing that it has no objection to such waiver in the case of such alien. Notwithstanding the foregoing, an alien who is a graduate of a foreign medical school pursuing a program in graduate medical education or training may obtain a waiver of such two-year foreign residence requirements if said alien meets the requirements of section 214(l) of the Immigration and Nationality Act (8 U.S.C. 1184) and paragraphs (a) (2) and (e) of this section.
(b) Request for waiver on the basis of exceptional hardship or probable persecution on account of race, religion, or political opinion. (1) An exchange visitor who seeks a waiver of the two-year home-country residence and physical presence requirement on the grounds that such requirement would impose exceptional hardship upon the exchange visitor’s spouse or child (if such spouse or child is a citizen of the United States or a legal permanent resident alien), or on the grounds that such requirement would subject the exchange visitor to persecution on account of race, religion, or political opinion, shall submit the application for waiver (DHS Form I-612) to the jurisdictional office of the Department of Homeland Security.
(2)(i) If the Secretary of Homeland Security (Secretary of DHS) determines that compliance with the two-year home-country residence and physical presence requirement would impose exceptional hardship upon the spouse or child of the exchange visitor, or would subject the exchange visitor to persecution on account of race, religion, or political opinion, the Secretary of DHS shall transmit a copy of his determination together with a summary of the details of the expected hardship or persecution, to the Waiver Review Division, in the Department of State’s Bureau of Consular Affairs.
(ii) With respect to those cases in which the Secretary of DHS has determined that compliance with the two-year home-country residence and physical presence requirement would impose exceptional hardship upon the spouse or child of the exchange visitor, the Waiver Review Division shall review the program, policy, and foreign relations aspects of the case, make a recommendation, and forward it to the appropriate office at DHS. If it deems it appropriate, the Waiver Review Division may request the views of each of the exchange visitors’ sponsors concerning the waiver application. Except as set forth in paragraph (g)(4) of this section, the recommendation of the Waiver Review Division shall constitute the recommendation of the Department of State.
(iii) With respect to those cases in which the Secretary of DHS has determined that compliance with the two-year home-country residence and physical presence requirement would subject the exchange visitor to persecution on account of race, religion, or political opinion, the Waiver Review Division shall review the program, policy, and foreign relations aspects of the case, including consultation if deemed appropriate with the Bureau of Human Rights and Humanitarian Affairs of the United States Department of State, make a recommendation, and forward such recommendation to the Secretary of DHS. Except as set forth in paragraph (g)(4) of this section, the recommendation of the Waiver Review Division shall constitute the recommendation of the Department of State and such recommendation shall be forwarded to DHS.
(c) Requests for waiver made by an interested United States Government Department of State. (1) A United States Government agency may request a waiver of the two-year home-country residence and physical presence requirement on behalf of an exchange visitor if such exchange visitor is actively and substantially involved in a program or activity sponsored by or of interest to such agency.
(2) A United States Government agency requesting a waiver shall submit its request in writing and fully explain why the grant of such waiver request would be in the public interest and the detrimental effect that would result to the program or activity of interest to the requesting agency if the exchange visitor is unable to continue his or her involvement with the program or activity.
(3) A request by a United States Government agency shall be signed by the head of the agency, or his or her designee, and shall include copies of all IAP 66 or DS-2019 forms issued to the exchange visitor, his or her current address, and his or her country of nationality or last legal permanent residence.
(4) A request by a United States Government agency, excepting the Department of Veterans Affairs, on behalf of an exchange visitor who is a foreign medical graduate who entered the United States to pursue graduate medical education or training, and who is willing to provide primary care or specialty medicine in a designated primary care Health Professional shortage Area, or a Medically Underserved Area, or psychiatric care in a Mental Health Professional Shortage Area, shall, in additional to the requirement set forth in paragraphs (c)(2) and (3) of this section, include:
(i) A copy of the employment contract between the foreign medical graduate and the health care facility at which he or she will be employed. Such contract shall specify a term of employment of not less than three years and that the foreign medical graduate is to be employed by the facility for the purpose of providing not less than 40 hours per week of primary medical care, i.e., general or family practice, general internal medicine, pediatrics, or obstetrics and gynecology, in a designated primary care Health Professional Shortage Area or designated Medically Underserved Area (“MUA”) or psychiatric care in a designated Mental Health Professional Shortage Area. Further, such employment contract shall not include a non-compete clause enforceable against the foreign medical graduate.
(ii) A statement, signed and dated by the head of the health care facility at which the foreign medical graduate will be employed, that the facility is located in an area designated by the Secretary of Health and Human Services as a Medically Underserved Area or Primary Medical Care Health Professional Shortage Area or Mental Health Professional Shortage Area and provides medical care to both Medicaid or Medicare eligible patients and indigent uninsured patients. The statement shall also list the primary care Health Professional Shortage Area, Mental Health Professional Shortage Area, or Medically Underserved Area/Population identifier number of the designation (assigned by the Secretary of Health and Human Services), and shall include the FIPS county code and census tract or block numbering area number (assigned by the Bureau of the Census) or the 9-digit zipcode of the area where the facility is located.
(iii) A statement, signed and dated by the foreign medical graduate exchange visitor that shall read as follows:
I, ____________________ (name of exchange visitor) hereby declare and certify, under penalty of the provisions of 18 U.S.C. 1001, that I do not now have pending nor am I submitting during the pendency of this request, another request to any United States Government department or agency or any State Department of Public Health, or equivalent, other than ____________________ (insert name of United States Government Agency requesting waiver) to act on my behalf in any matter relating to a waiver of my two-year home-country physical presence requirement.
(iv) Evidence that unsuccessful efforts have been made to recruit an American physician for the position to be filled.
(5) Except as set forth in paragraph (g)(4) of this section, the recommendation of the Waiver Review Division shall constitute the recommendation of the Department of State and such recommendation shall be forwarded to the Secretary of DHS.
(d) Requests for waiver made on the basis of a statement from the exchange visitor’s home-country that it has no objection to the waiver. (1) Applications for waiver of the two-year home-country residence and physical presence requirement may be supported by a statement of no objection by the exchange visitor’s country of nationality or last legal permanent residence. The statement of no objection shall be directed to the Secretary of State through diplomatic channels; i.e., from the country’s Foreign Office to the Department of State through the U.S. Mission in the foreign country concerned, or through the foreign country’s head of mission or duly appointed designee in the United States to the Secretary of State in the form of a diplomatic note. This note shall include applicant’s full name, date and place of birth, and present address. If deemed appropriate, the Department of State may request the views of each of the exchange visitor’s sponsors concerning the waiver application.
(2) The Waiver Review Division shall review the program, policy, and foreign relations aspects of the case and forward its recommendation to the Secretary of DHS. Except as set forth in § 41.63(g)(4), infra, the recommendation of the Waiver Review Division shall constitute the recommendation of the Department of State.
(3) An exchange visitor who is a graduate of a foreign medical school and who is pursuing a program in graduate medical education or training in the United States is prohibited under section 212(e) of the Immigration and Nationality Act from applying for a waiver solely on the basis of no objection from his or her country of nationality or last legal permanent residence. However, an alien who is a graduate of a foreign medical school pursuing a program in graduate medical education or training may obtain a waiver of such two-year foreign residence requirements if said alien meets the requirements of section 214(l) of the Immigration and Nationality Act (8 U.S.C. 1184) and paragraphs (a)(2) and (e) of this section.
(e) Requests for waiver from a State Department of Public Health, or its equivalent, on the basis of Public Law 103-416. (1) Pursuant to Public Law 103-416, in the case of an alien who is a graduate of a medical school pursuing a program in graduate medical education or training, a request for a waiver of the two-year home-country residence and physical presence requirement may be made by a State department of Public Health, or its equivalent. Such waiver shall be subject to the requirements of section 214(l) of the Immigration and Nationality Act (8 U.S.C. 1194(l)) and this § 41.63.
(2) With respect to such waiver under Public Law 104-416, if such alien is contractually obligated to return to his or her home country upon completion of the graduate medical education or training, the Secretary of State is to be furnished with a statement in writing that the country to which such alien is required to return has no objection to such waiver. The no objection statement shall be furnished to the Secretary of State in the manner and form set forth in paragraph (d) of this section and, additionally, shall bear a notation that it is being furnished pursuant to Public Law 103-416.
(3) The State Department of Public Health, or equivalent agency, shall include in the waiver application the following:
(i) A completed DS-3035. Copies of these forms may be obtained from the Visa Office or online at http://www.travel.state.gov.
(ii) A letter from the Director of the designated State Department of Public Health, or its equivalent, which identifies the foreign medical graduate by name, country of nationality or country of last legal permanent residence, and date of birth, and states that it is in the public interest that a waiver of the two-year home residence requirement be granted;
(iii) An employment contract between the foreign medical graduate and the health care facility named in the waiver application, to include the name and address of the health care facility, and the specific geographical area or areas in which the foreign medical graduate will practice medicine. The employment contract shall include a statement by the foreign medical graduate that he or she agrees to meet the requirements set forth in section 214(l) of the Immigration and Nationality Act. The term of the employment contract shall be at least three years and the geographical areas of employment shall only be in areas, within the respective state, designated by the Secretary of Health and Human Services as having a shortage of health care professionals, unless the waiver request is for an alien who will practice medicine in a facility that serves patients who reside in one or more geographic areas so designated by the Secretary of Health and Human Services without regard to whether such facility is located within such a designated geographic area. For the latter situation, which will be referred to as “non-designated requests”, the contract should also state that the term of the employment contract shall be at least three years and employment shall only be in a facility that serves patients who reside in one or more geographic areas so designed by the Secretary of Health and Human Services as having a shortage of health care professionals.
(iv) Evidence establishing that the geographic area or areas in the state in which the foreign medical graduate will practice medicine or where patients who will be served by the foreign medical graduates reside, are areas which have been designated by the Secretary of Health and Human Services as having a shortage of health care professionals. For purposes of this paragraph, the geographic area or areas must be designated by the Department of Health and Human Services as a Health Professional Shortage Area (“HPSA”) or as a Medically Underserved Area/Medically Underserved Population (“MUA/MUP”).
(v) Copies of all forms IAP 66 or DS-2019 issued to the foreign medical graduate seeking the waiver;
(vi) A copy of the foreign medical graduate’s curriculum vitae;
(vii) If the foreign medical graduate is otherwise contractually required to return to his or her home country at the conclusion of the graduate medical education or training, a copy of the statement of no objection from the foreign medical graduate’s country of nationality or last residence; and,
(viii) Because of the numerical limitations on the approval of waivers under Public Law 103-416, i.e., no more than the maximum number of waivers for each State each fiscal year as mandated by law, each application from a State Department of Public Health, or its equivalent, shall be numbered sequentially, beginning on October 1 of each year. The “non-designated” requests will also be numbered sequentially with appropriate identifier.
(4) The Waiver Review Division shall review the program, policy, and foreign relations aspects of the case and forward its recommendation to the Secretary of DHS. Except as set forth in paragraph (g)(4) of this section, the recommendation of the Waiver Review Division shall constitute the recommendation of the Department of State.
(f) Changed circumstances. An applicant for a waiver on the grounds of exceptional hardship or probable persecution on account of race, religion, or political opinion, has a continuing obligation to inform the Department of Homeland Security of changed circumstances material to his or her pending application.
(g) The Waiver Review Board. (1) The Waiver Review Board (“Board”) shall consist of the following persons or their designees:
(i) The Principal Deputy Assistant Secretary of the Bureau of Consular Affairs;
(ii) The Director of Office of Public Affairs for the Bureau of Consular Affairs;
(iii) The Legislative Management Officer for Consular Affairs, Bureau of Legislative Affairs;
(iv) The Director of the Office of Exchange Coordination and Designation in the Bureau of Educational and Cultural Affairs; and
(v) The Director of the Office of Policy and Evaluation in the Bureau of Educational and Cultural Affairs.
(2) A person who has had substantial prior involvement in a particular case referred to the Board may not be appointed to, or serve on, the Board for that particular case unless the Bureau of Consular Affairs determines that the individual’s inclusion on the Board is otherwise necessary or practicably unavoidable.
(3) The Principal Deputy Assistant Secretary of Consular Affairs, or his or her designee, shall serve as Board Chairman. No designee under this paragraph (g)(3) shall serve for more than 2 years.
(4) Cases will be referred to the Board at the discretion of the Chief, Waiver Review Division, of the Visa Office. The Chief, Waiver Review Division, or his or her designee may, at the Chairman’s discretion, appear and present facts related to the case but shall not participate in Board deliberations.
(5) The Chairman of the Board shall be responsible for convening the Board and distributing all necessary information to its members. Upon being convened, the Board shall review the case file and weigh the request against the program, policy, and foreign relations aspects of the case.
(6) The Bureau of Consular Affairs shall appoint, on a case-by-case basis, from among the attorneys in the State Department’s Office of Legal Advisor one attorney to serve as legal advisor to the Board.
(7) At the conclusion of its review of the case, the Board shall make a written recommendation either to grant or to deny the waiver application. The written recommendation of a majority of the Board shall constitute the recommendation of the Board. Such recommendation shall be promptly transmitted by the Chairman to the Chief, Waiver Review Division.
(8) At the conclusion of its review of the case, the Board shall make a written recommendation either to grant or to deny the waiver application. The written recommendation of a majority of the Board shall constitute the recommendation of the Board. Such recommendation shall be promptly transmitted by the Chairman to the Chief, Waiver Review Division.
Subpart H – Transit Aliens
§ 41.71 Transit aliens.
(a) Transit aliens – general. An alien is classifiable as a nonimmigrant transit alien under INA 101(a) (15) (C) if the consular officer is satisfied that the alien:
(1) Intends to pass in immediate and continuous transit through the United States;
(2) Is in possession of a common carrier ticket or other evidence of transportation arrangements to the alien’s destination;
(3) Is in possession of sufficient funds to carry out the purpose of the transit journey, or has sufficient funds otherwise available for that purpose; and
(4) Has permission to enter some country other than the United States following the transit through the United States, unless the alien submits satisfactory evidence that such advance permission is not required.
(b) Certain aliens in transit to United Nations. An alien within the provisions of paragraph (3), (4), or (5) of section 11 of the Headquarters Agreement with the United Nations, to whom a visa is to be issued for the purpose of applying for admission solely in transit to the United Nations Headquarters District, may upon request or at the direction of the Secretary of State be issued a nonimmigrant visa bearing the symbol C-2. If such a visa is issued, the recipient shall be subject to such restrictions on travel within the United States as may be provided in regulations prescribed by the Secretary of Homeland Security.
Subpart I – Fiance(e)s and Other Nonimmigrants
§ 41.81 Fiancé(e) or spouse of a U.S. citizen and derivative children.
(a) Fiancé(e). An alien is classifiable as a nonimmigrant fiancé(e) under INA 101(a)(15)(K)(i) if:
(1) The consular officer is satisfied that the alien is qualified under that provision and the consular officer has received a petition filed by a U.S. citizen to confer nonimmigrant status as a fiancé(e) on the alien, which has been approved by the DHS under INA 214(d), or a notification of such approval from that Service;
(2) The consular officer has received from the alien the alien’s sworn statement of ability and intent to conclude a valid marriage with the petitioner within 90 days of arrival in the United States; and
(3) The alien has met all other qualifications in order to receive a nonimmigrant visa, including the requirements of paragraph (d) of this section.
(b) Spouse. An alien is classifiable as a nonimmigrant spouse under INA 101(a)(15)(K)(ii) when all of the following requirements are met:
(1) The consular officer is satisfied that the alien is qualified under that provision and the consular officer has received a petition approved by the DHS pursuant to INA 214(p)(1), that was filed by the U.S. citizen spouse of the alien in the United States.
(2) If the alien’s marriage to the U.S. citizen was contracted outside of the United States, the alien is applying in the country in which the marriage took place, or if there is no consular post in that country, then at a consular post designated by the Deputy Assistant Secretary of State for Visa Services to accept immigrant visa applications for nationals of that country.
(3) If the marriage was contracted in the United States, the alien is applying in a country as provided in part 42, § 42.61 of this chapter.
(4) The alien otherwise has met all applicable requirements in order to receive a nonimmigrant visa, including the requirements of paragraph (d) of this section.
(c) Child. An alien is classifiable under INA 101(a)(15)(K)(iii) if:
(1) The consular officer is satisfied that the alien is the child of an alien classified under INA 101(a)(15)(K)(i) or (ii) and is accompanying or following to join the principal alien; and
(2) The alien otherwise has met all other applicable requirements in order to receive a nonimmigrant visa, including the requirements of paragraph (d) of this section.
(d) Eligibility as an immigrant required. The consular officer, insofar as is practicable, must determine the eligibility of an alien to receive a nonimmigrant visa under paragraphs (a), (b) or (c) of this section as if the alien were an applicant for an immigrant visa, except that the alien must be exempt from the vaccination requirement of INA 212(a)(1) and the labor certification requirement of INA 212(a)(5).
§ 41.82 Certain parents and children of section 101(a)(27)(I) special immigrants. [Reserved]
§ 41.83 Certain witnesses and informants.
(a) General. An alien shall be classifiable under the provisions of INA 101(a)(15)(S) if:
(1) The consular officer is satisfied that the alien qualifies under the provisions of that section; and
(2)(i) The consular officer has received verification from the Department of State, Visa Office, that:
(A) in the case of INA 101(a)(15)(S)(i) the DHS has certified that the alien is accorded such classification, or
(B) in the case of INA 101(a)(15)(S)(ii) the Assistant Secretary of State for Consular Affairs on behalf of the Secretary of State and the DHS have certified that the alien is accorded such classification;
(ii) and the alien is granted an INA 212(d)(1) waiver of any INA 212(a) ground of ineligibility known at the time of verification.
(b) Certification of S visa status. The certification of status under INA 101(a)(15)(S)(i) by the Secretary of Homeland Security or of status under INA 101(a)(15)(S)(ii) by the Secretary of State and the Secretary of Homeland Security acting jointly does not establish that the alien is eligible to receive a nonimmigrant visa.
(c) Validity of visa. The period of validity of a visa authorized on the basis of paragraph (a) of this section shall not exceed the period indicated in the certification required in paragraph (b) and shall not in any case exceed the period of three years.
§ 41.84 Victims of trafficking in persons.
(a) Eligibility. An alien may be classifiable as a parent, spouse or child under INA 101(a)(15)(T)(ii) if:
(1) The consular officer is satisfied that the alien has the required relationship to an alien who has been granted status by the Secretary for Homeland Security under INA 101(a)(15)(T)(i);
(2) The consular officer is satisfied that the alien is otherwise admissible under the immigration laws of the United States; and
(3) The consular officer has received an DHS-approved I-914, Supplement A, evidencing that the alien is the spouse, child, or parent of an alien who has been granted status under INA 101(a)(15)(T)(i).
(b) Visa validity. A qualifying family member may apply for a nonimmigrant visa under INA(a)(15)(T)(ii) only during the period in which the principal applicant is in status under INA 101(a)(15)(T)(i). Any visa issued pursuant to such application shall be valid only for a period of three years or until the expiration of the principal alien’s status as an alien classified under INA 101(a)(15)(T)(i), whichever is shorter.
§ 41.86 Certain spouses and children of lawful permanent resident aliens.
(a) Definition of “remains pending”. For the purposes of this section, a visa application “remains pending” if the applicant has applied for an immigrant visa in accordance with the definition in part 40, § 40.1(l)(2) and the visa has neither been issued, nor refused for any reason under applicable law and regulation.
(b) Entitlement to classification. A consular officer may classify an alien as a nonimmigrant under INA 101(a)(15)(V) if:
(1) The consular officer has received notification from the Department of State or the Department of Justice that a petition to accord status to the alien as a spouse or child pursuant to INA 203(a)(2)(A) was filed on or before December 21, 2000; or
(2) The alien is eligible to derive benefits pursuant to INA 203(d) as a child of an alien described in paragraph (b)(1) of this section and such alien has qualified for V classification; and
(3) It has been three years or more since the filing date of the petition described in paragraph (b)(1) of this section and applicable to paragraph (b)(2) of this section and either:
(i) The petition has not been approved; or
(ii) If it has been approved, either no immigrant visa number is immediately available or the alien’s application for adjustment of status or the alien’s application for a visa remains pending.
(c) Eligibility as an immigrant required. The consular officer, insofar as practicable, must determine the eligibility of an alien described in paragraph (b) of this section to receive a nonimmigrant visa under INA 101(a)(15)(V), other than an alien who previously has been granted V status in the United States by DHS, as if the alien were an applicant for an immigrant visa, except that the alien is exempt from the vaccination requirement of INA 212(a)(1), the labor certification requirement of INA 212(a)(5) and the unlawful presence ineligibility of INA 212(a)(9)(B).
(d) Place of application. Notwithstanding the requirements of § 41.101, in determining the place of application for an alien seeking a visa pursuant to INA 101(a)(15)(V) the requirements of part 42, §§ 42.61(a) and (b)(1) of this chapter will apply.
Subpart J – Application for Nonimmigrant Visa
§ 41.101 Place of application.
(a) Application for regular visa made at jurisdictional consular office of alien’s residence or physical presence. (1) An alien applying for a nonimmigrant visa shall make application at a consular office having jurisdiction over the alien’s place of residence, or if the alien is a resident of Taiwan, at the American Institute in Taiwan, unless –
(i) The alien is physically present in the United States and is entitled to apply for issuance or reissuance of a visa under the provisions of § 41.111(b); or
(ii) A consular office having jurisdiction over the area in which the alien is physically present but not resident has agreed, as a matter of discretion or at the direction of the Department, to accept the alien’s application; or
(iii) The alien is subject to INA 222(g) and must apply as set forth in paragraph (b) or (c) of this section.
(2) The Deputy Assistant Secretary of State for Visa Services is authorized to designate the geographical area for which each consular office possesses jurisdiction to process nonimmigrant visa applications.
(b) Place of application for persons subject to INA 222(g). Notwithstanding the requirements of paragraph (a) of this section, an alien whose prior nonimmigrant visa has been voided pursuant to INA 222(g), who is applying for a new nonimmigrant visa, shall make application at a consular office which has jurisdiction in or for the country of the alien’s nationality unless extraordinary circumstances have been determined to exist with respect to that alien as set forth in paragraph (c) of this section.
(c) Exceptions based on extraordinary circumstances. (1) An alien physician serving in underserved areas of the United States under the provisions of INA 214(l) for whom an application for a waiver of the 2-year foreign residence requirement and/or a petition to accord H-1B status was filed prior to the end of the alien’s authorized period of stay and was subsequently approved, but whose authorized stay expired during the adjudication of such application(s), shall make application in accordance with paragraph (a) of this section.
(2) Any other individual or group whose circumstances are determined to be extraordinary, in accordance with paragraph (d)(1) of this section, by the Deputy Assistant Secretary for Visa Services upon the favorable recommendation of an immigration or consular officer, shall make application in accordance with paragraph (a) of this section.
(3) An alien who has, or immediately prior to the alien’s last entry into the United States had, a residence in a country other than the country of the alien’s nationality shall apply at a consular office with jurisdiction in or for the country of residence.
(4) An alien who is a national and resident of a country in which there is no United States consular office shall apply at a consular office designated by the Deputy Assistant Secretary for Visa Services to accept immigrant visa applications from persons of that nationality.
(5) An alien who possesses more than one nationality and who has, or immediately prior to the alien’s last entry into the United States had, a residence in one of the countries of the alien’s nationality shall apply at a consular office in the country of such residence.
(d) Definitions relevant to INA 222(g). (1) Extraordinary circumstances – Extraordinary circumstances may be found where compelling humanitarian or national interests exist or where necessary for the effective administration of the immigration laws. Extraordinary circumstances shall not be found upon the basis of convenience or financial burden to the alien, the alien’s relative, or the alien’s employer.
(2) Nationality – For purposes of paragraph (b) of this section, a stateless person shall be considered to be a national of the country which issued the alien’s travel document.
(e) Regular visa defined. “Regular visa” means a nonimmigrant visa of any classification which does not bear the title “Diplomatic” or “Official.” A nonimmigrant visa is issued as a regular visa unless the alien falls within one of the classes entitled to a diplomatic or an official visa as described in § 41.26(c) or § 41.27(c).
(f) [Reserved]
§ 41.102 Personal appearance of applicant.
(a) Except when the requirement of personal appearance has been waived pursuant to paragraph (b), (c), or (d) of this section, each applicant for a nonimmigrant visa who is at least 14 years of age and not more than 79 years of age must personally appear before and be interviewed by a consular officer, who shall determine on the basis of the applicant’s representations, the visa application and other relevant documentation:
(1) The proper nonimmigrant classification, if any, of the alien; and
(2) The alien’s eligibility to receive a visa.
(b) Waivers of personal appearance by consular officers. Except as provided in paragraph (e) of this section or as otherwise instructed by the Deputy Assistant Secretary of State for Visa Services, a consular officer may waive the requirement of personal appearance if the consular officer concludes the alien presents no national security concerns requiring an interview and:
(1) Is within a class of nonimmigrants classifiable under the visa symbols A-1, A-2, C-2, C-3 (except attendants, servants, or personal employees of accredited officials), G-1, G-2, G-3, G-4, NATO-1, NATO-2, NATO-3, NATO-4, NATO-5, NATO-6, or is a Taipei Economic and Cultural Representative Office (TECRO) nonimmigrant classifiable under visa symbol E-1, and is seeking a visa in such classification; or
(2) Is an applicant for a diplomatic or official visa as described in § 41.26 or § 41.27 of this chapter; or
(3) Is an applicant who is within 12 months of the expiration of the applicant’s previously issued visa and:
(i) Is seeking re-issuance of a nonimmigrant visa in the same classification;
(ii) Is applying at the consular post of the applicant’s usual residence; and
(iii) Is an applicant for whom the consular officer has no indication of visa ineligibility or of noncompliance with U.S. immigration laws and regulations.
(c) Waivers of personal appearance in the national interest. Except as provided in paragraph (e) of this section, the Secretary may waive the requirement of personal appearance of an individual applicant or a class of applicants if the Secretary determines that such waiver is in the national interest of the United States.
(d) Waivers of personal appearance in unusual or emergent circumstances. Except as provided in paragraph (e) of this section, the Deputy Assistant Secretary for Visa Services may waive the requirement of personal appearance of an individual applicant or a class of applicants if the Deputy Assistant Secretary determines that such waiver is necessary as a result of unusual or emergent circumstances.
(e) Cases in which personal appearance may not be waived. Except for a nonimmigrant applicant whose personal appearance is waived under paragraphs (b)(1), (b)(2), or (c) of this section, the personal appearance requirement may not be waived for:
(1) Any nonimmigrant applicant who is not a national or resident of the country in which he or she is applying.
(2) Any nonimmigrant applicant who was previously refused a visa, is listed in CLASS, or otherwise requires a Security Advisory Opinion, unless:
(i) The visa was refused and the refusal was subsequently overcome; or
(ii) The alien was found inadmissible, but the inadmissibility was waived.
(3) Any nonimmigrant applicant who is from a country designated by the Secretary of State as a state sponsor of terrorism, regardless of age, or who is a member of a group or sector designated by the Secretary of State under section 222(h)(2)(F) of the Immigration and Nationality Act.
§ 41.103 Filing an application.
(a) Filing an application – (1) Filing of application required. Every alien seeking a nonimmigrant visa must make an electronic application on Form DS-160 or, as directed by a consular officer, an application on Form DS-156. The Form DS-160 must be signed electronically by clicking the box designated “Sign Application” in the certification section of the application.
(2) Filing of an electronic application (Form DS-160) or Form DS-156 by alien under 16 or physically incapable. The application for an alien under 16 years of age or one physically incapable of completing an application may be completed and executed by the alien’s parent or guardian, or if the alien has no parent or guardian, by any person having legal custody of, or a legitimate interest in, the alien.
(3) Waiver of filing of application when personal appearance is waived. Even if personal appearance of a visa applicant is waived pursuant to 22 CFR 41.102, the requirement for filing an application is not waived.
(b) Application – (1) Preparation of Electronic Nonimmigrant Visa Application (Form DS-160) or, alternatively, Form DS-156. The consular officer shall ensure that the application is fully and properly completed in accordance with the applicable regulations and instructions.
(2) Additional requirements and information as part of application. Applicants who are required to appear for a personal interview must provide a biometric, which will serve to authenticate identity and additionally verify the accuracy and truthfulness of the statements in the application at the time of interview. The consular officer may require the submission of additional necessary information or question an alien on any relevant matter whenever the consular officer believes that the information provided in the application is inadequate to permit a determination of the alien’s eligibility to receive a nonimmigrant visa. Additional statements made by the alien become a part of the visa application. All documents required by the consular officer under the authority of § 41.105(a) are considered papers submitted with the alien’s application within the meaning of INA 221(g)(1).
(3) Signature. The Form DS-160 shall be signed electronically by clicking the box designated “Sign Application” in the certification section of the application. This electronic signature attests to the applicant’s familiarity with and intent to be bound by all statements in the NIV application under penalty of perjury. Alternatively, except as provided in paragraph (a)(2) of this section, the Form DS-156 shall be signed by the applicant, with intent to be bound by all statement in the NIV application under penalty of perjury.
(4) Registration. The Form DS-160 or the Form DS-156, when duly executed, constitutes the alien’s registration for the purposes of INA 221(b).
§ 41.104 Passport requirements.
(a) Passports defined. “Passport” as defined in INA 101(a)(30) is not limited to a national passport or to a single document. A passport may consist of two or more documents which, when considered together, fulfill the requirements of a passport, provided that the documentary evidence of permission to enter a foreign country has been issued by a competent authority and clearly meets the requirements of INA 101(a)(30).
(b) Passport requirement. Except for certain persons in the A, C-3, G, and NATO classifications and persons for whom the passport requirement has been waived pursuant to the provisions of INA 212(d)(4), every applicant for a nonimmigrant visa is required to present a passport, as defined above and in INA 101(a)(30), which is valid for the period required by INA 212(a)(7)(B)(i)(I).
(c) A single passport including more than one person. The passport requirement for a nonimmigrant visa may be met by the presentation of a passport including more than one person, if such inclusion is authorized under the laws or regulations of the issuing authority and if a photograph of each visa applicant 16 years of age or over has been attached to the passport by the issuing authority.
(d) Applicants for diplomatic visas. Every applicant for a diplomatic visa must present a diplomatic passport, or the equivalent thereof, having the period of validity required by INA 212(a)(7)(B)(i)(I), unless such requirement has been waived pursuant to the authority contained in INA 212(d)(4) or unless the case falls within the provisions of § 41.21(b).
§ 41.105 Supporting documents and fingerprinting.
(a) Supporting documents – (1) Authority to require documents. The consular officer is authorized to require documents considered necessary to establish the alien’s eligibility to receive a nonimmigrant visa. All documents and other evidence presented by the alien, including briefs submitted by attorneys or other representatives, shall be considered by the consular officer.
(2) Unobtainable documents. If the consular officer is satisfied that a document or record required under the authority of this section is unobtainable, the consular officer may accept satisfactory alternative pertinent evidence. A document or other record shall be considered unobtainable if it cannot be procured without causing the applicant or a member of the applicant’s family actual hardship as distinct from normal delay and inconvenience.
(3) Photographs required. Every applicant for a nonimmigrant visa must furnish a photograph in such numbers as the consular officer may require. Photographs must be a reasonable likeness, 1
(4) Police certificates. A police certificate is a certification by the police or other appropriate authorities stating what, if anything, their records show concerning the alien. An applicant for a nonimmigrant visa is required to present a police certificate if the consular officer has reason to believe that a police or criminal record exists, except that no police certificate is required in the case of an alien who is within a class of nonimmigrants classifiable under visa symbols A-1, A-2, C-3, G-1 through G-4, NATO-1 through NATO-4 or NATO-6.
(b) Fingerprinting. Every applicant for a nonimmigrant visa must furnish fingerprints, as required by the consular officer.
§ 41.106 Processing.
Consular officers must ensure that the Form DS-160 or, alternatively, Form DS-156 is properly and promptly processed in accordance with the applicable regulations and instructions.
§ 41.107 Visa fees.
(a) Fees based on reciprocity. The fees for the issuance of visas, including official visas, to nonimmigrant nationals or stateless residents of each foreign country shall be collected in the amounts prescribed by the Secretary of State unless, on the basis of reciprocity, no fee is chargeable. If practicable, fees will correspond to the total amount of all visa, entry, residence, or other similar fees, taxes or charges assessed or levied against nationals of the United States by the foreign countries of which such nonimmigrants are nationals or stateless residents.
(b) Fees when more than one alien included in visa. A single nonimmigrant visa may be issued to include all eligible family members if the spouse and unmarried minor children of a principal alien are included in one passport. Each alien must execute a separate application. The name of each family member shall be inserted in the space provided in the visa stamp. The visa fee to be collected shall equal the total of the fees prescribed by the Secretary of State for each alien included in the visa, unless upon a basis of reciprocity a lesser fee is chargeable.
(c) Certain aliens exempted from fees. (1) Upon a basis of reciprocity, or as provided in section 13(a) of the Headquarters Agreement with the United Nations (61 Stat. 716; 22 U.S.C. 287, Note), no fee shall be collected for the application for or issuance of a nonimmigrant visa to an alien who is within a class of nonimmigrants classifiable under the visa symbols A, G, C-2, C-3, or NATO, or B-1 issued for participation in an official observer mission to the United Nations, or who is issued a diplomatic visa as defined in § 41.26.
(2) The consular officer shall waive the nonimmigrant visa application and issuance fees for an alien who will be engaging in charitable activities for a charitable organization upon the written request of the charitable organization claiming that it will find the fees a financial burden, if the consular officer is satisfied that:
(i) The organization seeking relief from the fees is, if based in the United States, tax-exempt as a charitable organization under the provisions of section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3)); if a foreign organization based outside the United States in a country having laws according recognition to charitable institutions, that it establishes that it is recognized as a charitable institution by that government; and if a foreign organization based in a country without such laws, that it is engaged in activities substantially similar to those underlying section 501(c)(3), and
(ii) The charitable activities in which the alien will engage are specified and will be a part of, or will be related to and in support of, the organization’s provision of services, including but not limited to health care, food and housing, job training, and similar direct services and assistance to the poor and needy, and
(iii) The request includes the location of the proposed activities, the number and identifying data of each of the alien(s) who will be applying for visas, and
(iv) The proposed duration of the alien(s)’s temporary stay in the United States is reasonably consistent with the charitable purpose for which the alien(s) seek to enter the United States.
(3) Foreign national employees of the U. S. Government who are travelling to the United States on official business in connection with that employment.
(d) Refund of fees. A fee collected for the issuance of a nonimmigrant visa is refundable only if the principal officer at a post or the officer in charge of a consular section determines that the visa was issued in error or could not be used as a result of action taken by the U.S. Government for which the alien was not responsible and over which the alien had no control.
(e)(1) Visa processing surcharge. In addition to the collection of the fee prescribed in paragraph (a) of this section, a consular officer shall collect or ensure the collection of a surcharge for the processing of applications for machine readable nonimmigrant visas and for machine readable combined border crossing cards in the amount specified by the Secretary of State from such applicants as the Secretary of State shall designate. Such surcharge is refundable only if, as a result of action taken by the U.S. Government for which the alien was not responsible and over which the alien had no control, the alien’s application is not processed.
(2) Notwithstanding paragraph (e)(1) of this section, a consular officer shall collect or insure the collection of a processing fee for a machine-readable combined border crossing card and nonimmigrant visa in an amount determined by the Secretary and set forth in 22 CFR 22.1 to be sufficient only to cover the cost for manufacturing the combined card and visa if:
(i) The alien is a Mexican citizen under the age of 15;
(ii) The alien is applying in Mexico; and
(iii) The alien has at least one parent or guardian who has a visa or is applying for a machine-readable combined border crossing card and visa.
§ 41.108 Medical examination.
(a) Requirements for medical examination. An applicant for a nonimmigrant visa shall be required to take a medical examination if:
(1) The alien is an applicant for a K nonimmigrant visa as a fiance(e) of a U.S. citizen or as the child of such an applicant; or,
(2) The alien is seeking admission for medical treatment and the consular officer considers a medical examination advisable; or,
(3) The consular officer has reason to believe that a medical examination might disclose that the alien is medically ineligible to receive a visa.
(b) Examination by panel physician. The required examination, which must be carried out in accordance with United States Public Health Service regulations, shall be conducted by a physician selected by the alien from a panel of physicians approved by the consular officer or, if the alien is in the United States, by a medical officer of the United States Public Health Service or by a contract physician from a list of physicians approved by the DHS for the examination of INA 245 adjustment of status applicants.
(c) Panel physician facility requirements. A consular officer may not include the name of a physician on the panel of physicians referred to in paragraph (b) of this section unless the physician has facilities to perform required serological and X-ray tests or is in a position to refer applicants to a qualified laboratory for such tests.
Subpart K – Issuance of Nonimmigrant Visa
§ 41.111 Authority to issue visa.
(a) Issuance outside the United States. Any consular officer is authorized to issue regular and official visas. Diplomatic visas may be issued only by:
(1) A consular officer attached to a U.S. diplomatic mission, if authorized to do so by the Chief of Mission; or
(2) A consular officer assigned to a consular office under the jurisdiction of a diplomatic mission, if so authorized by the Department or the Chief, Deputy Chief, or Counselor for Consular Affairs of that mission, or, if assigned to a consular post not under the jurisdiction of a diplomatic mission, by the principal officer of that post.
(b) Issuance in the United States in certain cases. The Deputy Assistant Secretary for Visa Services and such officers of the Department as the former may designate are authorized, in their discretion, to issue nonimmigrant visas, including diplomatic visas, in the United States, to:
(1) Qualified applicants who are currently maintaining status and are properly classifiable in the A, C-2, C-3, G or NATO category and intend to reenter the United States in that status after a temporary absence abroad and who also present evidence that:
(i) They have been lawfully admitted in that status or have, after admission, had their classification changed to that status; and
(ii) Their period of authorized stay in the United States in that status has not expired; and
(2) Children who are born in the United States, but who are not subject to the jurisdiction thereof because they are born to certain qualified individuals who are currently maintaining status and are properly classifiable in the A, C-2, C-3, G or NATO category.
(3) Other qualified applicants who:
(i) Are currently maintaining status in the E, H, I, L, O, or P nonimmigrant category;
(ii) Intend to reenter the United States in that status after a temporary absence abroad; and
(iii) Who also present evidence that:
(A) They were previously issued visas at a consular office abroad and admitted to the United States in the status which they are currently maintaining; and
(B) Their period of authorized admission in that status has not expired.
§ 41.112 Validity of visa.
(a) Significance of period of validity of visa. The period of validity of a nonimmigrant visa is the period during which the alien may use it in making application for admission. The period of visa validity has no relation to the period of time the immigration authorities at a port of entry may authorize the alien to stay in the United States.
(b) Validity of visa and number of applications for admission. (1) Except as provided in paragraphs (c) and (d) of this section, a nonimmigrant visa shall have the validity prescribed in schedules provided to consular officers by the Department, reflecting insofar as practicable the reciprocal treatment accorded U.S. nationals, U.S. permanent residents, or aliens granted refugee status in the U.S. by the government of the country of which the alien is a national, permanent resident, refugee or stateless resident.
(2) Notwithstanding paragraph (b)(1) of this section, United States nonimmigrant visas shall have a maximum validity period of 10 years.
(3) An unexpired visa is valid for application for admission even if the passport in which the visa is stamped has expired, provided the alien is also in possession of a valid passport issued by the authorities of the country of which the alien is a national.
(c) Limitation on validity. If warranted in an individual case, a consular officer may issue a nonimmigrant visa for:
(1) A period of validity that is less than that prescribed on a basis of reciprocity,
(2) A number of applications for admission within the period of the validity of the visa that is less than that prescribed on a basis of reciprocity,
(3) Application for admission at a specified port or at specified ports of entry, or
(4) Use on and after a given date subsequent to the date of issuance.
(d) Automatic extension of validity at ports of entry. (1) Provided that the requirements set out in paragraph (d)(2) of this section are fully met, the following provisions apply to nonimmigrant aliens seeking readmission at ports of entry:
(i) The validity of an expired nonimmigrant visa issued under INA 101(a)(15) may be considered to be automatically extended to the date of application for readmission; and
(ii) In cases where the original nonimmigrant classification of an alien has been changed by DHS to another nonimmigrant classification, the validity of an expired or unexpired nonimmigrant visa may be considered to be automatically extended to the date of application for readmission, and the visa may be converted as necessary to that changed classification.
(2) The provisions in paragraph (d)(1) of this section are applicable only in the case of a nonimmigrant alien who:
(i) Is in possession of a Form I-94, Arrival-Departure Record, endorsed by DHS to show an unexpired period of initial admission or extension of stay, provided that in the case of a qualified F student or the accompanying spouse or child of such student, is in possession of a current Form I-20, Certificate of Eligibility for Nonimmigrant Student Status, issued by the school that the student has been authorized to attend by DHS and endorsed by the issuing school official to indicate the period of initial admission or extension of stay authorized by DHS, and provided that in the case of a qualified J exchange visitor or the accompanying spouse or child of such exchange visitor, is in possession of a current Form DS-2019, Certificate of Eligibility for Exchange Visitor Status (J-NONIMMIGRANT), issued and endorsed by the Department of State-designated sponsor of the exchange program, to indicate the period of initial admission authorized by DHS or the extension of stay authorized by the Department of State;
(ii) Is applying for readmission after an absence not exceeding 30 days solely in contiguous territory, or, in the case of a student or exchange visitor or accompanying spouse or child meeting the stipulations of paragraph (d)(2)(i) of this section, after an absence not exceeding 30 days in contiguous territory or adjacent islands other than Cuba;
(iii) Has maintained and intends to resume nonimmigrant status;
(iv) Is applying for readmission within the authorized period of initial admission or extension of stay;
(v) Is in possession of a valid passport;
(vi) Does not require authorization for admission under INA 212(d)(3); and
(vii) Has not applied for a new visa while abroad.
(3) The provisions in paragraphs (d)(1) and (d)(2) of this section shall not apply to the nationals of countries identified as supporting terrorism in the Department’s annual report to Congress entitled Patterns of Global Terrorism.
§ 41.113 Procedures in issuing visas.
(a) Evidence of visa. Except as provided in paragraph (b) of this section, a nonimmigrant visa shall be evidenced by a physical visa placed in the alien’s passport or by an electronic visa located in the Department’s records. The appropriate symbol as prescribed in § 41.12, showing the classification of the alien, shall be entered on the visa.
(b) Cases in which a physical visa is not placed in passport. In the following cases a physical visa shall be placed on the prescribed Form DS-232. In issuing such a visa, a notation shall be made on the Form DS-232 on which the visa is placed, specifying the pertinent subparagraph of this paragraph under which the action is taken.
(1) The alien’s passport was issued by a government with which the United States does not have formal diplomatic relations, unless the Department has specifically authorized the placing of the visa in such passport;
(2) The passport requirement has been waived; or
(3) In other cases as authorized by the Department.
(c) Visa format. A machine-readable visa shall be in the format designated by the Department, and contain, at a minimum, the following data:
(1) Full name of the applicant;
(2) Visa type/class;
(3) Location of the visa issuing office;
(4) Passport number;
(5) Sex;
(6) Date of birth;
(7) Nationality;
(8) Number of applications for admission authorized, or the letter “M” for multiple applications for admission authorized;
(9) Date of issuance;
(10) Date of expiration;
(11) Visa control number.
(d) Insertion of name, petition, and derivative status notation. (1) The surname and given name of the visa recipient shall be shown on the visa in the space provided.
(2) If the visa is being issued upon the basis of a petition approved by the Secretary of Homeland Security, the number of the petition, if any, the period for which the ‘alien’s admission has been authorized, and the name of the petitioner shall be reflected in the annotation field on the visa.
(3) In the case of an alien who derives status from a principal alien, the name of the principal alien and of the petitioner shall be reflected in the annotation field of the visa.
(e) Period of validity. If a nonimmigrant visa is issued for an unlimited number of applications for admission within the period of validity, the letter “M” shall be shown under the word “entries”. Otherwise the number of permitted applications for admission shall be identified numerically. The date of issuance and the date of expiration of the visa shall be shown at the appropriate places in the visa by day, month, and year in that order. The standard three letter abbreviation for the month shall be used in all cases.
(f) Restriction to specified port(s) of entry. If a nonimmigrant visa is valid for admission only at one or more specified ports of entry, the names of those ports shall be entered in the annotation field. In cases where there is insufficient room to list the port(s) of entry, they shall be listed by hand on a clean passport page. Reference shall be made in the visa’s annotation field citing the passport page upon which the port(s) of entry are listed.
(g) Delivery of visa. In issuing a nonimmigrant visa, the consular officer should deliver the passport containing the visa, or the prescribed Form DS-232 which bears the visa, to the alien or to the alien’s authorized representative. Any relevant evidence furnished by the alien in accordance with § 41.103(b) should be retained, as required or necessary.
(h) Disposition of supporting documents. Original supporting documents furnished by the alien should be returned for presentation, if necessary, to the immigration authorities at the port of entry. Duplicate copies may be retained in the consular system, as required or necessary.
(i) Review of nonimmigrant visa issuances. Nonimmigrant visa issuances must be reviewed, in accordance with guidance by the Secretary of State, by consular supervisors, or a designated alternate, to ensure compliance with applicable laws and procedures.
Subpart L – Refusals and Revocations
§ 41.121 Refusal of nonimmigrant visas.
(a) Grounds for refusal. Nonimmigrant visa refusals must be based on legal grounds, such as one or more provisions of INA 212(a), INA 212(e), INA 214(b) or (f) or (l) (as added by Section 625 of Pub. L. 104-208), INA 221(g), INA 222(g), or other applicable law. Certain classes of nonimmigrant aliens are exempted from specific provisions of INA 212(a) under INA 102 and, upon a basis of reciprocity, under INA 212(d)(8). When a visa application has been properly completed and executed in accordance with the provisions of the INA and the implementing regulations, the consular officer must issue the visa, refuse the visa, or, pursuant to an outstanding order under INA 243(d), discontinue granting the visa.
(b) Refusal procedure. (1) When a consular officer knows or has reason to believe a visa applicant is ineligible and refuses the issuance of a visa, he or she must inform the alien of the ground(s) of ineligibility (unless disclosure is barred under INA 212(b)(2) or (3)) and whether there is, in law or regulations, a mechanism (such as a waiver) to overcome the refusal. The officer shall note the reason for the refusal on the application. Upon refusing the nonimmigrant visa, the consular officer shall retain the original of each document upon which the refusal was based, as well as each document indicating a possible ground of ineligibility, and should return all other supporting documents supplied by the applicant.
(2) If an alien, who has not yet filed a visa application, seeks advice from a consular officer, who knows or has reason to believe that the alien is ineligible to receive a visa on grounds which cannot be overcome by the presentation of additional evidence, the officer shall so inform the alien. The consular officer shall inform the applicant of the provision of law or regulations upon which a refusal of a visa, if applied for, would be based (subject to the exception in paragraph (b)(1) of this section). If practicable, the consular officer should request the alien to execute a nonimmigrant visa application in order to make a formal refusal. If the individual fails to execute a visa application in these circumstances, the consular officer shall treat the matter as if a visa had been refused and create a record of the presumed ineligibility which shall be filed in the consular office.
(c) Nonimmigrant refusals must be reviewed, in accordance with guidance by the Secretary of State, by consular supervisors, or a designated alternate, to ensure compliance with laws and procedures. If the ground(s) of ineligibility upon which the visa was refused cannot be overcome by the presentation of additional evidence, the refusal must be reviewed without delay; that is, on the day of the refusal or as soon as it is administratively possible. If the ground(s) of ineligibility may be overcome by the presentation of additional evidence, and the applicant has indicated the intention to submit such evidence, a review of the refusal may be deferred for not more than 120 days. If the reviewing officer disagrees with the decision and he or she has a consular commission and title, the reviewing officer can assume responsibility and readjudicate the case. If the reviewing officer does not have a consular commission and title, he or she must consult with the adjudicating officer, or with the Visa Office, to resolve any disagreement.
(d) Review of refusal by Department. The Department may request a consular officer in a specific case or in specified classes of cases to submit a report if a visa has been refused. The Department will review each report and may furnish an advisory opinion to the consular officer for assistance in considering the case further. If the officer believes that action contrary to an advisory opinion should be taken, the case shall be resubmitted to the Department with an explanation of the proposed action. Rulings of the Department concerning an interpretation of law, as distinguished from an application of the law to the facts, shall be binding upon consular officers.
§ 41.122 Revocation of visas.
(a) Grounds for revocation by consular officers. A consular officer, the Secretary, or a Department official to whom the Secretary has delegated this authority is authorized to revoke a nonimmigrant visa at any time, in his or her discretion.
(b) Provisional revocation – (1) General. A provisional revocation is subject to reversal through internal procedures established by the Department of State. Upon reversal of the revocation, the visa immediately resumes the validity provided for on its face. Provisional revocation shall have the same force and effect as any other visa revocation under INA 221(i), unless and until the revocation has been reversed. Neither the provisional revocation of a visa nor the reversal of a provisional revocation limits, in any way, the revocation authority provided for under INA 221(i), with respect to the particular visa or any other visa.
(2) Pending visa eligibility determination. A consular officer, the Secretary, or any Department official to whom the Secretary has delegated this authority may provisionally revoke a nonimmigrant visa while considering information related to whether a visa holder is eligible for the visa.
(3) Automatic provisional revocation based on failure to comply with all EVUS requirements. Visas held by individuals subject to the Electronic Visa Update System (EVUS) who have not complied with the conditions described in 8 CFR 215.24 or whose notification of compliance has expired or been rescinded are automatically provisionally revoked and are no longer valid for travel to the United States, without further notice to the visa holder. The automatic provisional revocation pursuant to this paragraph (b)(3) shall be automatically reversed upon compliance with EVUS requirements set out at 8 CFR part 215, subpart B, as confirmed by receipt of a notification of compliance. A visa revoked on grounds other than failure to comply with EVUS shall remain revoked, notwithstanding compliance with EVUS.
(c) Notice of revocation. Unless otherwise instructed by the Department, a consular officer shall, if practicable, notify the alien to whom the visa was issued that the visa was revoked or provisionally revoked. Regardless of delivery of such notice, once the revocation has been entered into the Department’s Consular Lookout and Support System (CLASS), the visa is no longer to be considered valid for travel to the United States. The date of the revocation shall be indicated in CLASS and on any notice sent to the alien to whom the visa was issued. This paragraph (c) does not apply to provisional revocations under paragraph (b)(3) of this section.
(d) Procedure for physically canceling visas. Except for provisional revocations pursuant to paragraph (b)(3) of this section, a nonimmigrant visa that is revoked shall be canceled by writing or stamping the word “REVOKED” plainly across the face of the visa, if the visa is available to the consular officer. The failure or inability to physically cancel the visa does not affect the validity of the revocation.
(e) Revocation of visa by immigration officer. An immigration officer is authorized to revoke a valid visa by physically canceling it in accordance with the procedure described in paragraph (d) of this section if:
(1) The alien obtains an immigrant visa or an adjustment of status to that of permanent resident;
(2) The alien is ordered excluded from the United States under INA 236, as in effect prior to April 1, 1997, or removed from the United States pursuant to INA 235;
(3) The alien is notified pursuant to INA 235 by an immigration officer at a port of entry that the alien appears to be inadmissible to the United States, and the alien requests and is granted permission to withdraw the application for admission;
(4) A final order of deportation or removal or a final order granting voluntary departure with an alternate order of deportation or removal is entered against the alien;
(5) The alien has been permitted by DHS to depart voluntarily from the United States;
(6) DHS has revoked a waiver of inadmissibility granted pursuant to INA 212(d)(3)(A) in relation to the visa that was issued to the alien;
(7) The visa is presented in connection with an application for admission to the United States by a person other than the alien to whom the visa was issued;
(8) The visa has been physically removed from the passport in which it was issued; or
(9) The visa has been issued in a combined Mexican or Canadian B-1/B-2 visa and border crossing identification card, and the immigration officer makes the determination specified in § 41.32(c) with respect to the alien’s Mexican citizenship and/or residence or the determination specified in § 41.33(b) with respect to the alien’s status as a permanent resident of Canada.
§ 41.123 Discontinuance of granting nonimmigrant visa pursuant to INA 243(d).
(a) Grounds for discontinuance of granting a visa. Consular officers in a country subject to an order by the Secretary under INA 243(d) shall discontinue granting nonimmigrant visas for categories of nonimmigrant visas specified in the order of the Secretary (or his or her designee), and pursuant to procedures dictated by the Department.
(b) Discontinuance procedure – (1) Applications refused or discontinued only. Starting on the day the Secretary’s (or designee’s) order to discontinue granting visas takes effect (effective date), no visas falling within the scope of the order, as described by the order, may be issued in the referenced country to an applicant who falls within the scope of the order, except as otherwise expressly provided in the order or related Department instructions. Beginning on the effective date, a consular officer must refuse the visa if the individual is not eligible for the visa under INA 212(a), INA 221(g), or other applicable law, but if the applicant is otherwise eligible, must process the application by discontinuing granting, regardless of when the application was filed, if the applicant falls within the scope of the order and no exception applies. The application processing fee will not be refunded. The requirement to discontinue issuance may not be waived, and continues until the sanction is terminated as described below.
(2) Geographic applicability. Visa sanctions under INA 243(d) only apply to visa issuance in the country that is sanctioned. If a consular officer has a reason to believe that a visa applicant potentially subject to INA 243(d) sanctions is applying at a post outside the sanctioned country to evade visa sanctions under INA 243(d) (e.g., the applicant provides no credible explanation for applying outside the country), the consular officer will transfer the case to the consular post in the consular district where INA 243(d) sanctions apply, review any other applicable Department instructions, and proceed accordingly. When cases are transferred to a consular district where INA 243(d) sanctions apply, the adjudication will be subject to the discontinuation of issuance under the sanctions.
(c) Termination of sanction. The Department shall notify consular officers in an affected country when the sanction under INA 243(d) has been lifted. After notification, normal consular operations may resume consistent with these regulations and guidance from the Department. Once the sanction under INA 243(d) is lifted, no new application processing fee is required in cases where issuance has been discontinued pursuant to an INA 243(d) order, and consular officers in the affected post must adjudicate the visa consistent with regulations and Department guidance. Consular officers may require applicants to update the visa application forms, must conduct any necessary adjudicatory steps, and may re-interview the applicant to determine eligibility.
PART 42 – VISAS: DOCUMENTATION OF IMMIGRANTS UNDER THE IMMIGRATION AND NATIONALITY ACT, AS AMENDED
Subpart A – Visa and Passport Not Required for Certain Immigrants
§ 42.1 Aliens not required to obtain immigrant visas.
An immigrant within any of the following categories is not required to obtain an immigrant visa:
(a) Aliens lawfully admitted for permanent residence. An alien who has previously been lawfully admitted for permanent residence and who is not required under the regulations of the Department of Homeland Security to present a valid immigrant visa upon returning to the United States.
(b) Alien members of U.S. Armed Forces. An alien member of the U.S. Armed Forces bearing military identification, who has previously been lawfully admitted for permanent residence and is coming to the United States under official orders or permit of those Armed Forces.
(c) Aliens entering from Guam, Puerto Rico, or the Virgin Islands. An alien who has previously been lawfully admitted for permanent residence who seeks to enter the continental United States or any other place under the jurisdiction of the United States directly from Guam, Puerto Rico, or the Virgin Islands of the United States.
(d) Child born after issuance of visa to accompanying parent. An alien child born after the issuance of an immigrant visa to an accompanying parent, who will arrive in the United States with the parent, and apply for admission during the period of validity of the visa issued to the parent.
(e) Child born of a national or lawful permanent resident mother during her temporary visit abroad. An alien child born during the temporary visit abroad of a mother who is a national or lawful permanent resident of the United States if applying for admission within 2 years of birth and accompanied by either parent applying and eligible for readmission as a permanent resident upon that parent’s first return to the United States after the child’s birth.
(f) American Indians born in Canada. An American Indian born in Canada and having at least 50 per centum of blood of the American Indian race.
§ 42.2 Aliens not required to present passports.
An immigrant within any of the following categories is not required to present a passport in applying for an immigrant visa:
(a) Certain relatives of U.S. citizens. An alien who is the spouse, unmarried son or daughter, or parent, of a U.S. citizen, unless the alien is applying for a visa in the country of which the applicant is a national and the possession of a passport is required for departure.
(b) Returning aliens previously lawfully admitted for permanent residence. An alien previously lawfully admitted for permanent residence who is returning from a temporary visit abroad, unless the alien is applying for a visa in the country of which the applicant is a national and the possession of a passport is required for departure.
(c) Certain relatives of aliens lawfully admitted for permanent residence. An alien who is the spouse, unmarried son or daughter, or parent of an alien lawfully admitted for permanent residence, unless the alien is applying for a visa in the country of which the applicant is a national and the possession of a passport is required for departure.
(d) Stateless persons. An alien who is a stateless person, and accompanying spouse and unmarried son or daughter.
(e) Nationals of Communist-controlled countries. An alien who is a national of a Communist-controlled country and who is unable to obtain a passport from the government of that country, and accompanying spouse and unmarried son or daughter.
(f) Alien members of U.S. Armed Forces. An alien who is a member of the U.S. Armed Forces.
(g) Beneficiaries of individual waivers. (1) An alien who would be within one of the categories described in paragraphs (a) through (d) of this section except that the alien is applying for a visa in a country of which the applicant is a national and possession of a passport is required for departure, in whose case the passport requirement has been waived by the Secretary of State, as evidence by a specific instruction from the Department.
(2) An alien unable to obtain a passport and not within any of the foregoing categories, in whose case the passport requirement imposed by § 42.64(b) or by DHS regulations has been waived by the Secretary of Homeland Security and the Secretary of State as evidenced by a specific instruction from the Department.
Subpart B – Classification and Foreign State Chargeability
§ 42.11 Classification symbols.
A visa issued to an immigrant alien within one of the classes described below shall bear an appropriate visa symbol to show the classification of the alien.
Immigrants
| Symbol | Class | Section of law |
|---|---|---|
| IR1 | Spouse of U.S. Citizen | 201(b). |
| IR2 | Child of U.S. Citizen | 201(b). |
| IR3 | Orphan Adopted Abroad by U.S. Citizen | 201(b) & 101(b)(1)(F). |
| IH3 | Child from Hague Convention Country Adopted Abroad by U.S. Citizen | 201(b) & 101(b)(1)(G). |
| IR4 | Orphan to be Adopted in U.S. by U.S. Citizen | 201(b) & 101(b)(1)(F). |
| IH4 | Child from Hague Convention Country to be Adopted in U.S. by U.S. Citizen | 201(b) & 101(b)(1)(G). |
| IR5 | Parent of U.S. Citizen at Least 21 Years of Age | 201(b). |
| CR1 | Spouse of U.S. Citizen (Conditional Status) | 201(b) & 216. |
| CR2 | Child of U.S. Citizen (Conditional Status) | 201(b) & 216. |
| IW1 | Certain Spouses of Deceased U.S. Citizens | 201(b). |
| IW2 | Child of IW1 | 201(b). |
| IB1 | Self-petition Spouse of U.S. Citizen | 204(a)(1)(A)(iii). |
| IB2 | Self-petition child of U.S. Citizen | 204(a)(1)(A)(iv). |
| IB3 | Child of IB1 | 204(a)(1)(A)(iii). |
| IB5 | Self-petition Parent of U.S. Citizen | 204(a)(1)(A)(vii) |
| VI5 | Parent of U.S. Citizen Who Acquired Permanent Resident Status Under the Virgin Islands Nonimmigrant Alien Adjustment Act | 201(b) & sec. 2 of the Virgin Islands Nonimmigrant Alien Adjustment Act, (Pub. L. 97-271). |
| AM1 | Vietnam Amerasian Principal | 584(b)(1)(A) of the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1988 (as contained in section 101(e) of Pub. L. 100-102) as amended. |
| AM2 | Spouse or Child of AM1 | 584(b)(1)(A) and 584(b)(1)(B) of the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1988 (as contained in section 101(e) of Public Law 100-102) as amended. |
| AM3 | Natural Mother of AM1 (and Spouse or Child of Such Mother) or Person Who has Acted in Effect as the Mother, Father, or Next-of-Kin of AM1 (and Spouse or Child of Such Person) | 584(b)(1)(A) and 584(b)(1)(C) of the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1988 (as contained in section 101(e) of Public Law 100-102) as amended. |
| SB1 | Returning Resident | 101(a)(27)(A). |
| SC1 | Person Who Lost U.S. Citizenship by Marriage | 101(a)(27)(B) & 324(a). |
| SC2 | Person Who Lost U.S. Citizenship by Serving in Foreign Armed Forces | 101(a)(27)(B) & 327. |
| SI1 | Certain Aliens Employed by the U.S. Government in Iraq or Afghanistan as Translators or Interpreters | Section 1059 of Pub. L. 109-163 as amended by Pub. L. 110-36. |
| SI2 | Spouse of SI1 | Section 1059 of Pub. L. 109-163 as amended by Pub. L. 110-36. |
| SI3 | Child of SI1 | Section 1059 of Pub. L. 109-163 as amended by Pub. L. 110-36. |
| SM1 | Alien Recruited Outside the United States Who Has Served or is Enlisted to Serve in the U.S. Armed Forces for 12 Years | 101(a)(27)(K). |
| SM2 | Spouse of SM1 | 101(a)(27)(K). |
| SM3 | Child of SM1 | 101(a)(27)(K). |
| SQ1 | Certain Iraqis or Afghans Employed by or on Behalf of the U.S. Government | Section 602(b), Division F, Title VI, Omnibus Appropriations Act of 2009, Pub. L. 111-8 and Section 1244 of Pub. L. 110-181. |
| SQ2 | Spouse of SQ1 | Section 602(b), Division F, Title VI, Omnibus Appropriations Act of 2009, Pub. L. 111-8 and Section 1244 of Pub. L. 110-181. |
| SQ3 | Child of SQ1 | Section 602(b), Division F, Title VI, Omnibus Appropriations Act of 2009, Pub. L. 111-8 and Section 1244 of Pub. L. 110-181. |
| SU2 | Spouse of U1 | INA 245(m)(3) & INA 101(a)(15)(U)(ii). |
| SU3 | Child of U1 | INA 245(m)(3) & INA 101(a)(15)(U)(ii). |
| SU5 | Parent of U1 | INA 245(m)(3) & INA 101(a)(15)(U)(ii). |
| F11 | Unmarried Son or Daughter of U.S. Citizen | 203(a)(1). |
| F12 | Child of F11 | 203(d) & 203(a)(1). |
| B11 | Self-petition Unmarried Son or Daughter of U.S. Citizen | 204(a)(1)(A)(iv) & 203(a)(1). |
| B12 | Child of B11 | 203(d), 204(a)(1)(A)(iv) & 203(a)(1). |
| F21 | Spouse of Lawful Permanent Resident | 203(a)(2)(A). |
| F22 | Child of Lawful Permanent Resident | 203(a)(2)(A). |
| F23 | Child of F21 or F22 | 203(d) & 203(a)(2)(A). |
| F24 | Unmarried Son or Daughter of Lawful Permanent Resident | 203(a)(2)(B). |
| F25 | Child of F24 | 203(d) & 203(a)(2)(B). |
| C21 | Spouse of Lawful Permanent Resident (Conditional) | 203(a)(2)(A) & 216. |
| C22 | Child of Alien Resident (Conditional) | 203(a)(2)(A) & 216. |
| C23 | Child of C21 or C22 (Conditional) | 203(d) & 203(a)(2)(A) & 216. |
| C24 | Unmarried Son or Daughter of Lawful Permanent Resident (Conditional) | 203(a)(2)(B) & 216. |
| C25 | Child of F24 (Conditional) | 203(d) & 203(a)(2)(B) & 216. |
| B21 | Self-petition Spouse of Lawful Permanent Resident | 204(a)(1)(B)(ii). |
| B22 | Self-petition Child of Lawful Permanent Resident | 204(a)(1)(B)(iii). |
| B23 | Child of B21 or B22 | 203(d) & 204(a)(1)(B)(ii). |
| B24 | Self-petition Unmarried Son or Daughter of Lawful Permanent Resident | 204(a)(1)(B)(iii). |
| B25 | Child of B24 | 203(d) & 204(a)(1)(B)(iii). |
| FX1 | Spouse of Lawful Permanent Resident | 202(a)(4)(A) & 203(a)(2)(A). |
| FX2 | Child of Lawful Permanent Resident | 202(a)(4)(A) & 203(a)(2)(A). |
| FX3 | Child of FX1 or FX2 | 202(a)(4)(A) & 203(a)(2)(A) & 203(d). |
| CX1 | Spouse of Lawful Permanent Resident (Conditional) | 202(a)(4)(A) & 203(a)(2)(A) & 216. |
| CX2 | Child of Lawful Permanent Resident (Conditional) | 202(a)(4)(A) & 203(a)(2)(A) & 216. |
| CX3 | Child of CX1 or CX2 (Conditional) | 202(a)(4)(A) & 203(a)(2)(A) & 203(d) & 216. |
| BX1 | Self-petition Spouse of Lawful Permanent Resident | 204(a)(1)(B)(ii). |
| BX2 | Self-petition Child of Lawful Permanent Resident | 204(a)(1)(B)(iii). |
| BX3 | Child of BX1 or BX2 | 204(a)(1)(B)(ii) & 203(d). |
| F31 | Married Son or Daughter of U.S. Citizen | 203(a)(3). |
| F32 | Spouse of F31 | 203(d) & 203(a)(3). |
| F33 | Child of F31 | 203(d) & 203(a)(3). |
| C31 | Married Son or Daughter of U.S. Citizen (Conditional) | 203(a)(3) & 216. |
| C32 | Spouse of C31 (Conditional) | 203(d) & 203(a)(3) & 216. |
| C33 | Child of C31 (Conditional) | 203(d) & 203(a)(3) & 216. |
| B31 | Self-petition Married Son or Daughter of U.S. Citizen | 204(a)(1)(A)(iv) & 203(a)(3). |
| B32 | Spouse of B31 | 203(d), 204(a)(1)(A)(iv) & 203(a)(3). |
| B33 | Child of B31 | 203(d), 204(a)(1)(A)(iv) & 203(a)(3). |
| F41 | Brother or Sister of U.S. Citizen at Least 21 Years of Age | 203(a)(4). |
| F42 | Spouse of F41 | 203(d) & 203(a)(4). |
| F43 | Child of F41 | 203(d) & 203(a)(4). |
| E11 | Alien with Extraordinary Ability | 203(b)(1)(A). |
| E12 | Outstanding Professor or Researcher | 203(b)(1)(B). |
| E13 | Multinational Executive or Manager | 203(b)(1)(C). |
| E14 | Spouse of E11, E12, or E13 | 203(d) & 203(b)(1)(A) & 203(b)(1)(B) & 203(b)(1)(C). |
| E15 | Child of E11, E12, or E13 | 203(d) & 203(b)(1)(A) & 203(b)(1)(B) & 203(b)(1)(C). |
| E21 | Professional Holding Advanced Degree or Alien of Exceptional Ability | 203(b)(2). |
| E22 | Spouse of E21 | 203(d) & 203(b)(2). |
| E23 | Child of E21 | 203(d) & 203(b)(2). |
| E31 | Skilled Worker | 203(b)(3)(A)(i). |
| E32 | Professional Holding Baccalaureate Degree | 203(b)(3)(A)(ii). |
| E34 | Spouse of E31 or E32 | 203(d) & 203(b)(3)(A)(i) & 203(b)(3)(A)(ii). |
| E35 | Child of E31 or E32 | 203(d) & 203(b)(3)(A)(i) & 203(b)(3)(A)(ii). |
| EW3 | Other Worker (Subgroup Numerical Limit) | 203(b)(3)(A)(iii). |
| EW4 | Spouse of EW3 | 203(d) & 203(b)(3)(A)(iii). |
| EW5 | Child of EW3 | 203(d) & 203(b)(3)(A)(iii). |
| BC1 | Broadcaster in the U.S. employed by the International Broadcasting Bureau of the Broadcasting Board of Governors or a grantee of such organization | 101(a)(27)(M) & 203(b)(4). |
| BC2 | Accompanying spouse of BC1 | 101(a)(27)(M) & 203(b)(4). |
| BC3 | Accompanying child of BC1 | 101(a)(27)(M) & 203(b)(4). |
| SD1 | Minister of Religion | 101(a)(27)(C)(ii)(I) & 203(b)(4). |
| SD2 | Spouse of SD1 | 101(a)(27)(C)(ii)(I) & 203(b)(4). |
| SD3 | Child of SD1 | 101(a)(27)(C)(ii)(I) & 203(b)(4). |
| SE1 | Certain Employees or Former Employees of the U.S. Government Abroad | 101(a)(27)(D) & 203(b)(4). |
| SE2 | Spouse of SE1 | 101(a)(27)(D) & 203(b)(4). |
| SE3 | Child of SE1 | 101(a)(27)(D) & 203(b)(4). |
| SF1 | Certain Former Employees of the Panama Canal Company or Canal Zone Government | 101(a)(27)(E) & 203 (b)(4). |
| SF2 | Spouse or Child of SF1 | 101(a)(27)(E) & 203 (b)(4). |
| SG1 | Certain Former Employees of the U.S. Government in the Panama Canal Zone | 101(a)(27)(F) & 203 (b)(4). |
| SG2 | Spouse or Child of SG1 | 101(a)(27)(F) & 203 (b)(4). |
| SH1 | Certain Former Employees of the Panama Canal Company or Canal Zone Government on April 1, 1979 | 101(a)(27)(G) & 203 (b)(4). |
| SH2 | Spouse or Child of SH1 | 101(a)(27)(G) & 203(b)(4). |
| SJ1 | Certain Foreign Medical Graduates (Adjustments Only) | 101(a)(27)(H). |
| SJ2 | Accompanying Spouse or Child of SJ1 | 101(a)(27)(H) & 203(b)(4). |
| SK1 | Certain Retired International Organization employees | 101(a)(27)(I)(iii) & 203(b)(4). |
| SK2 | Spouse of SK1 | 101(a)(27)(I)(iv) & 203(b)(4). |
| SK3 | Certain Unmarried Sons or Daughters of an International Organization Employee | 101(a)(27)(I)(i) & 203(b)(4). |
| SK4 | Certain Surviving Spouses of a deceased International Organization Employee | 101(a)(27)(I)(ii) & 203(b)(4). |
| SL1 | Juvenile Court Dependent (Adjustment Only) | 101(a)(27)(J) & 203(b)(4). |
| SN1 | Certain retired NATO6 civilians | 101(a)(27)(L) & 203(b)(4). |
| SN2 | Spouse of SN1 | 101(a)(27)(L) & 203(b)(4). |
| SN3 | Certain unmarried sons or daughters of NATO6 civilian employees | 101(a)(27)(L) & 203(b)(4). |
| SN4 | Certain surviving spouses of deceased NATO6 civilian employees | 101(a)(27)(L) & 203(b)(4). |
| SP | Alien Beneficiary of a petition or labor certification application filed prior to September 11, 2001, if the petition or application was rendered void due to a terrorist act of September 11, 2001. Spouse, child of such alien, or the grandparent of a child orphaned by a terrorist act of September 11, 2001 | Section 421 of Public Law 107-56. |
| SR1 | Certain Religious Workers | 101(a)(27)(C)(ii)(II) & (III) as amended, & 203(b)(4). |
| SR2 | Spouse of SR1 | 101(a)(27)(C)(ii)(II) & (III) as amended, & 203(b)(4). |
| SR3 | Child of SR1 | 101(a)(27)(C)(ii)(II) & (III) as amended, & 203(b)(4). |
| C51 | Employment Creation OUTSIDE Targeted Areas | 203(b)(5)(A). |
| C52 | Spouse of C51 | 203(d) & 203(b)(5)(A). |
| C53 | Child of C51 | 203(d) & 203(b)(5)(A). |
| T51 | Employment Creation IN Targeted Rural/High Unemployment Area | 203(b)(5)(B). |
| T52 | Spouse of T51 | 203(d) & 203 (b)(5)(B). |
| T53 | Child of T51 | 203(d) & 203(b)(5)(B). |
| R51 | Investor Pilot Program, Not in Targeted Area | 203(b)(5) & Sec. 610 of the Departments of Commerce, Justice, and State, the Judiciary and Related Agencies Appropriations Act, 1993 (Pub. L. 102-395), as amended. |
| R52 | Spouse of R51 | 203(d) & 203(b)(5) & Sec. 610 of the Departments of Commerce, Justice, and State, the Judiciary and Related Agencies Appropriations Act, 1993 (Pub. L. 102-395), as amended. |
| R53 | Child of R51 | 203(d) & 203(b)(5) & Sec. 610 of the Departments of Commerce, Justice, and State, the Judiciary and Related Agencies Appropriations Act, 1993 (Pub. L. 102-395), as amended. |
| I51 | Investor Pilot Program, in Targeted Area | 203(b)(5) & Sec. 610 of the Departments of Commerce, Justice, and State, the Judiciary and Related Agencies Appropriations Act, 1993 (Pub. L. 102-395), as amended. |
| I52 | Spouse of I51 | 203(d) & 203(b)(5) & Sec. 610 of the Departments of Commerce, Justice, and State, the Judiciary and Related Agencies Appropriations Act, 1993 (Pub. L. 102-395), as amended. |
| I53 | Child of I51 | 203(d) & 203(b)(5) & Sec. 610 of the Departments of Commerce, Justice, and State, the Judiciary and Related Agencies Appropriations Act, 1993 (Pub. L. 102-395), as amended. |
| DV1 | Diversity Immigrant | 203(c). |
| DV2 | Spouse of DV1 | 203(d) & 203(c). |
| DV3 | Child of DV1 | 203(d) & 203(c). |
§ 42.12 Rules of chargeability.
(a) Applicability. An immigrant shall be charged to the numerical limitation for the foreign state or dependent area of birth, unless the case falls within one of the exceptions to the general rule of chargeability provided by INA 202(b) and paragraphs (b) through (e) of this section to prevent the separation of families or the alien is classifiable under:
(1) INA 201(b);
(2) INA 101(a)(27) (A) or (B);
(3) Section 112 of Public Law 101-649;
(4) Section 124 of Public Law 101-649;
(5) Section 132 of Public Law 101-649;
(6) Section 134 of Public Law 101-649; or
(7) Section 584(b)(1) as contained in section 101(e) of Public Law 100-202.
(b) Exception for child. If necessary to prevent the separation of a child from the alien parent or parents, an immigrant child, including a child born in a dependent area, may be charged to the same foreign state to which a parent is chargeable if the child is accompanying or following to join the parent, in accordance with INA 202(b)(1).
(c) Exception for spouse. If necessary to prevent the separation of husband and wife, an immigrant spouse, including a spouse born in a dependent area, may be charged to a foreign state to which a spouse is chargeable if accompanying or following to join the spouse, in accordance with INA 202(b)(2).
(d) Exception for alien born in the United States. An immigrant who was born in the United States shall be charged to the foreign state of which the immigrant is a citizen or subject. If not a citizen or subject of any country, the alien shall be charged to the foreign state of last residence as determined by the consular officer, in accordance with INA 202(b)(3).
(e) Exception for alien born in foreign state in which neither parent was born or had residence at time of alien’s birth. An alien who was born in a foreign state, as defined in § 40.1, in which neither parent was born, and in which neither parent had a residence at the time of the applicant’s birth, may be charged to the foreign state of either parent as provided in INA 202(b)(4). The parents of such an alien are not considered as having acquired a residence within the meaning of INA 202(b)(4), if, at the time of the alien’s birth within the foreign state, the parents were visiting temporarily or were stationed there in connection with the business or profession and under orders or instructions of an employer, principal, or superior authority foreign to such foreign state.
Subpart C – Immigrants Not Subject to Numerical Limitations of INA 201 and 202
§ 42.21 Immediate relatives.
(a) Entitlement to status. An alien who is a spouse or child of a United States citizen, or a parent of a U.S. citizen at least 21 years of age, shall be classified as an immediate relative under INA 201(b) if the consular officer has received from DHS an approved Petition to Classify Status of Alien Relative for Issuance of an Immigrant Visa, filed on the alien’s behalf by the U.S. citizen and approved in accordance with INA 204, and the officer is satisfied that the alien has the relationship claimed in the petition. An immediate relative shall be documented as such unless the U.S. citizen refuses to file the required petition, or unless the immediate relative is also a special immigrant under INA 101(a)(27) (A) or (B) and not subject to any numerical limitation.
(b) Spouse of a deceased U.S. citizen. The spouse of a deceased U.S. citizen, and each child of the spouse, will be entitled to immediate relative status after the date of the citizen’s death provided the spouse or child meets the criteria of INA 201(b)(2)(A)(i) or of section 423(a)(1) of Public Law 107-56 (USA Patriot Act) and the Consular Officer has received an approved petition from the DHS which accords such status, or official notification of such approval, and the Consular Officer is satisfied that the alien meets those criteria.
(c) Child of a U.S. citizen victim of terrorism. The child of a U.S. citizen slain in the terrorist actions of September 11, 2001, shall retain the status of an immediate relative child (regardless of changes in age or marital status) if the child files a petition for such status within two years of the citizen’s death pursuant to section 423(a)(2) of Public Law 107-56, and the consular officer has received an approved petition according such status or official notification of such approval.
§ 42.22 Returning resident aliens.
(a) Requirements for returning resident status. An alien shall be classifiable as a special immigrant under INA 101(a)(27)(A) if the consular officer is satisfied from the evidence presented that:
(1) The alien had the status of an alien lawfully admitted for permanent residence at the time of departure from the United States;
(2) The alien departed from the United States with the intention of returning and has not abandoned this intention; and
(3) The alien is returning to the United States from a temporary visit abroad and, if the stay abroad was protracted, this was caused by reasons beyond the alien’s control and for which the alien was not responsible.
(b) Documentation needed. Unless the consular officer has reason to question the legality of the alien’s previous admission for permanent residence or the alien’s eligibility to receive an immigrant visa, only those records and documents required under INA 222(b) which relate to the period of residence in the United States and the period of the temporary visit abroad shall be required. If any required record or document is unobtainable, the provisions of § 42.65(d) shall apply.
(c) Returning resident alien originally admitted under the Act of December 28, 1945. An alien admitted into the United States under Section 1 of the Act of December 28, 1945 (“GI Brides Act”) shall not be refused an immigrant visa after a temporary absence abroad solely because of a mental or physical defect or defects that existed at the time of the original admission.
§ 42.23 Certain former U.S. citizens.
(a) [Reserved]
(b) Military expatriates. An alien shall be classifiable as a special immigrant under INA 101(a)(27)(B) if the consular officer is satisfied by appropriate evidence that the alien was formerly a U.S. citizen and that the alien lost citizenship under the circumstances set forth in INA 327.
§ 42.24 Adoption under the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption and the Intercountry Adoption Act of 2000.
(a) Except as described in paragraph (n), for purposes of this section, the definitions in 22 CFR 96.2 apply.
(b) On or after the Convention effective date, as defined in 22 CFR 96.17, a child habitually resident in a Convention country who is adopted by a United States citizen deemed to be habitually resident in the United States in accordance with applicable DHS regulations must qualify for visa status under the provisions of INA section 101(b)(1)(G) as provided in this section. Such a child shall not be accorded status under INA section 101(b)(1)(F), provided that a child may be accorded status under INA section 101(b)(1)(F) if Form I-600A or I-600 was filed before the Convention effective date. Although this part 42 generally applies to the issuance of immigrant visas, this section 42.24 may also provide the basis for issuance of a nonimmigrant visa to permit a Convention adoptee to travel to the United States for purposes of naturalization under INA section 322.
(c) The provisions of this section govern the operations of consular officers in processing cases involving children for whom classification is sought under INA section 101(b)(1)(G), unless the Secretary of State has personally waived any requirement of the IAA or these regulations in a particular case in the interests of justice or to prevent grave physical harm to the child, to the extent consistent with the Convention.
(d) An alien child shall be classifiable under INA section 101(b)(1)(G) only if, before the child is adopted or legal custody for the purpose of adoption is granted, a petition for the child has been received and provisionally approved by a DHS officer or, where authorized by DHS, by a consular officer, and a visa application for the child has been received and annotated in accordance with paragraph (h) of this section by a consular officer. No alien child shall be issued a visa pursuant to INA section 101(b)(1)(G) unless the petition and visa application are finally approved.
(e) If a petition for a child under INA section 101(b)(1)(G) is properly filed with a consular officer, the consular officer will review the petition for the purpose of determining whether it can be provisionally approved in accordance with applicable DHS requirements. If a properly completed application for waiver of inadmissibility is received by a consular officer at the same time that a petition for a child under INA section 101(b)(1)(G) is received, provisional approval cannot take place unless the waiver is approved, and therefore the consular officer, pursuant to 8 CFR 204.313(i)(3) and 8 CFR 212.7, will forward the petition and the waiver application to DHS for decisions as to approval of the waiver and provisional approval of the petition. If a petition for a child under INA section 101(b)(1)(G) is received by a DHS officer, the consular officer will conduct any reviews, determinations or investigations requested by DHS with regard to the petition and classification determination in accordance with applicable DHS procedures.
(f) A petition shall be provisionally approved by the consular officer if, in accordance with applicable DHS requirements, it appears that the child will be classifiable under INA section 101(b)(1)(G) and that the proposed adoption or grant of legal custody will be in compliance with the Convention. If the consular officer knows or has reason to believe the petition is not provisionally approvable, the consular officer shall forward it to DHS pursuant to 8 CFR 204.313(i)(3).
(g) After a petition has been provisionally approved, a completed visa application form, any supporting documents required pursuant to § 42.63 and § 42.65, and any required fees must be submitted to the consular officer in accordance with § 42.61 for a provisional review of visa eligibility. The requirements in §§ 42.62, 42.64, 42.66 and 42.67 shall also be satisfied to the extent practicable.
(h) A consular officer shall provisionally determine visa eligibility based on a review of the visa application, submitted supporting documents, and the provisionally approved petition. In so doing, the consular officer shall follow all procedures required to adjudicate the visa to the extent possible in light of the degree of compliance with §§ 42.62 through 42.67. If it appears, based on the available information, that the child would not be ineligible under INA section 212 or other applicable law to receive a visa, the consular officer shall so annotate the visa application. If evidence of an ineligibility is discovered during the review of the visa application, and the ineligibility was not waived in conjunction with provisional approval of the petition, the prospective adoptive parents shall be informed of the ineligibility and given an opportunity to establish that it will be overcome. If the visa application cannot be annotated as described above, the consular officer shall deny the visa in accordance with § 42.81, regardless of whether the application has yet been executed in accordance with § 42.67(a); provided however that, in cases in which a waiver may be available under the INA and the consular officer determines that the visa application appears otherwise approvable, the consular officer shall inform the prospective adoptive parents of the procedure for applying to DHS for a waiver. If in addition the consular officer comes to know or have reason to believe that the petition is not clearly approvable as provided in 8 CFR 204.313(i)(3), the consular officer shall forward the petition to DHS pursuant to that section.
(i) If the petition has been provisionally approved and the visa application has been annotated in accordance with subparagraph (h), the consular officer shall notify the country of origin that the steps required by Article 5 of the Convention have been taken.
(j) After the consular officer has received appropriate notification from the country of origin that the adoption or grant of legal custody has occurred and any remaining requirements established by DHS or §§ 42.61 through 42.67 have been fulfilled, the consular officer, if satisfied that the requirements of the IAA and the Convention have been met with respect to the adoption or grant of legal custody, shall affix to the adoption decree or grant of legal custody a certificate so indicating. This certificate shall constitute the certification required by IAA section 301(a) and INA section 204(d)(2). For purposes of determining whether to issue a certificate, the fact that a consular officer notified the country of origin pursuant to paragraph (i) of this section that the steps required by Article 5 of the Convention had been taken and the fact that the country of origin has provided appropriate notification that the adoption or grant of legal custody has occurred shall together constitute prima facie evidence of compliance with the Convention and the IAA.
(k) If the consular officer is unable to issue the certificate described in paragraph (j) of this section, the consular officer shall notify the country of origin of the consular officer’s decision.
(l) After the consular officer determines whether to issue the certificate described in paragraph (j) of this section, the consular officer shall finally adjudicate the petition and visa application in accordance with standard procedures.
(m) If the consular officer is unable to give final approval to the visa application or the petition, then the consular officer shall forward the petition to DHS, pursuant to § 42.43 or 8 CFR 204.313(i)(3), as applicable, for appropriate action in accordance with applicable DHS procedures, and/or refuse the visa application in accordance with § 42.81. The consular officer shall notify the country of origin that the visa has been refused.
(n) Notwithstanding paragraphs (d) through (m) of this section, an alien described in paragraph (n)(1) of this section may qualify for visa status under INA section 101(b)(1)(G)(iii) without meeting the requirements set forth in paragraphs (d) through (m) of this section.
(1) Per Section 4(b) of the Intercountry Adoption Simplification Act, Public Law 111-287 (IASA), an alien otherwise described in INA section 101(b)(1)(G)(iii) who attained the age of 18 on or after April 1, 2008 shall be deemed to meet the age requirement imposed by INA section 101(b)(1)(G)(iii)(III), provided that a petition is filed for such child in accordance with DHS requirements not later than November 30, 2012.
(2) For any alien described in paragraph (n)(1) of this section, the “competent authority” referred to in INA section 101(b)(1)(G)(i)(V)(aa) is a court or governmental agency of a foreign country of origin having jurisdiction and authority to make decisions in matters of child welfare, including adoption. If the competent authority over matters of child welfare no longer has jurisdiction or authority over the alien due to his or her age, then the passport issuing authority of the country of origin may be considered the competent authority for the purposes of INA section 101(b)(1)(G)(i)(V)(aa).
Subpart D – Immigrants Subject to Numerical Limitations
§ 42.31 Family-sponsored immigrants.
(a) Entitlement to status. An alien shall be classifiable as a family-sponsored immigrant under INA 203(a) (1), (2), (3) or (4) if the consular officer has received from DHS a Petition to Classify Status of Alien Relative for Issuance of Immigrant Visa approved in accordance with INA 204 to accord the alien such preference status, or official notification of such an approval, and the consular officer is satisfied that the alien has the relationship to the petitioner indicated in the petition. In the case of a petition according an alien status under INA 203(a) (1) or (3) or status as an unmarried son or daughter under INA 203(a)(2), the petitioner must be a “parent” as defined in INA 101(b)(2) and 22 CFR 40.1. In the case of a petition to accord an alien status under INA 203(a)(4) filed on or after January 1, 1977, the petitioner must be at least twenty-one years of age.
(b) Entitlement to derivative status. Pursuant to INA 203(d), and whether or not named in the petition, the child of a family-sponsored first, second, third or fourth preference immigrant or the spouse of a family-sponsored third or fourth preference immigrant, if not otherwise entitled to an immigrant status and the immediate issuance of a visa, is entitled to a derivative status corresponding to the classification and priority date of the beneficiary of the petition.
§ 42.32 Employment-based preference immigrants.
Aliens subject to the worldwide level specified in section 201(d) for employment-based immigrants in a fiscal year shall be allotted visas as indicated below.
(a) First preference – Priority workers – (1) Entitlement to status. An alien shall be classifiable as an employment-based first preference immigrant under INA 203(b)(1) if the consular office has received from DHS a Petition for Immigrant Worker approved in accordance with INA 204 to accord the alien such Preference status, or official notification of such an approval, and the consular officer is satisfied that the alien is within one of the classes described in INA 203(b)(1).
(2) Entitlement to derivative status. Pursuant to INA 203(d), and whether or not named in the petition, the child or spouse of an employment-based first preference immigrant, if not otherwise entitled to an immigrant status and the immediate issuance of a visa, is entitled to a derivative status corresponding to the classification and priority date of the beneficiary of the petition.
(b) Second preference – Professionals with advanced degrees or persons of exceptional ability – (1) Entitlement to status. An alien shall be classifiable as an employment-based second preference immigrant under INA 203(b)(2) if the consular officer has received from DHS a Petition for Immigrant Worker approved in accordance with INA 204 to accord the alien such preference status, or official notification of such an approval, and the consular officer is satisfied that the alien is within one of the classes described in INA 203(b)(2).
(2) Entitlement to derivative status. Pursuant to INA 203(d), and whether or not named in the petition, the child or spouse of an employment-based second preference immigrant, if not otherwise entitled to an immigrant status and the immediate issuance of a visa, is entitled to a derivative status corresponding to the classification and priority date of the beneficiary of the petition.
(c) Third preference – Skilled workers, professionals, other workers – (1) Entitlement to status. An alien shall be classifiable as an employment-based third preference immigrant under INA 203(b)(3) if the consular officer has received from DHS a Petition for Immigrant Worker approved in accordance with INA 204 to accord the alien such preference status, or official notification of such an approval, and the consular officer is satisfied that the alien is within one of the classes described in INA 203(b)(3).
(2) Entitlement to derivative status. Pursuant to INA 203(d), and whether or not named in the petition, the child or spouse of an employment-based third preference immigrant, if not otherwise entitled to an immigrant status and the immediate issuance of a visa, is entitled to a derivative status corresponding to the classification and priority date of the beneficiary of the petition.
(d) Fourth preference – Special immigrants – (1) Religious workers – (i) Classification based on qualifications under INA 101(A)(27)(C). An alien shall be classifiable under INA 203(b)(4) as a special immigrant described in INA 101(a)(27)(C) if:
(A) The consular officer has received a petition approved by DHS to accord such classification, or an official notification of such approval; and
(B) The consular officer is satisfied from the evidence presented that the alien qualifies under that section; or
(C) The consular officer is satisfied the alien is the spouse or child of a religious worker so classified and is accompanying or following to join the principal alien.
(ii) Timeliness of application. An immigrant visa issued under INA 203(b)(4) to an alien described in INA 101(a)(27)(C), other than a minister of religion, who qualifies as a “religious worker” as defined in 8 CFR 204.5, shall bear the usual validity except that in no case shall it be valid later than September 30, 2003.
(2) See 22 CFR 42.34.
(3) Panama Canal employees – (i) Entitlement to status. An alien who is subject to the numerical limitations specified in section 3201(c) of the Panama Canal Act of 1979, Public Law 96-70, is classifiable under INA 203(b)(4) as a special immigrant described in INA 101(a)(27) (E), (F) or (G) if the consular officer has received a petition approved by DHS to accord such classification, or official notification of such an approval, and the consular officer is satisfied that the alien is within one of the classes described in INA 101(a)(27) (E), (F), or (G).
(ii) Entitlement to derivative status. Pursuant to INA 203(d), and whether or not named in the petition, the spouse or child of any alien classified under INA 203(b)(4) as a special immigrant qualified under this section, if not otherwise entitled to an immigrant status and the immediate issuance of a visa, is entitled to a derivative status corresponding to the classification and priority date of the beneficiary of the petition.
(4) Spouse and children of certain foreign medical graduates. The accompanying spouse and children of a graduate of a foreign medical school or of a person qualified to practice medicine in a foreign state who has adjusted status as a special immigrant under the provisions of INA 101(a)(27)(H) are classifiable under INA 203(b)(4) as special immigrants defined in INA 101(a)(27)(H) if the consular officer has received an approved petition from DHS which accords such status and the consular officer is satisfied that the alien is within the class described in INA 101(a)(27)(H).
(5) Certain international organization and NATO civilian employees – (i) Entitlement to status. An alien is classifiable under INA 203(b)(4) as a special immigrant defined in INA 101(a)(27)(I) or (L) if the consular officer has received a petition approved by the DHS to accord such classification, or official notification of such approval, and the consular officer is satisfied from the evidence presented that the alien is within one of the classes described therein.
(ii) Timeliness of application. An alien accorded status under INA 203(b)(4) because of qualification under INA 101(a)(27)(I) or (L) must appear for the final visa interview and issuance of the immigrant visa within six months of establishing entitlement to status.
(6) Certain juvenile court dependents. An alien shall be classifiable under INA 203(b)(4) as a special immigrant defined in INA 101(a)(27)(J) if the consular officer has received from DHS an approved petition to accord such status, or an official notification of such an approval, and the consular officer is satisfied the alien is within the class described in that section.
(7) Certain members of the United States Armed Forces recruited abroad – (i) Entitlement to status. An alien is classifiable under INA 203(b)(4) as a special immigrant described in INA 101(a)(27)(K) if the consular office has received a petition approved by the DHS to accord such classification, or official notification of such an approval, and the consular officer is satisfied from the evidence presented that the alien is within the class described in INA 101(a)(27)(K).
(ii) Entitlement to derivative status. Pursuant to INA 203(d), and whether or not named in the petition, the spouse or child of any alien classified under INA 203(b)(4) as a special immigrant qualified under this section, if not otherwise entitled to an immigrant status and the immediate issuance of a visa, is entitled to a derivative status corresponding to the classification and priority date of the beneficiary of the petition.
(8) Certain United States international broadcasting employees – (i) Entitlement to status. An alien is classifiable as a special immigrant under INA 203(b)(4) as described in INA 101(a)(27)(M), if the consular office has received a petition approved by the DHS to accord such classification, or official notification of such an approval, and the consular officer is satisfied from the evidence presented that the alien is within the class described in INA 101(a)(27)(M).
(ii) Entitlement to derivative status. Pursuant to INA 203(d), and whether or not named in the petition, the spouse or child of any alien classified under INA 203(b)(4) as a special immigrant qualified under this section, if not otherwise entitled to an immigrant status and the immediate issuance of a visa, is entitled to derivative status corresponding to the classification and priority date of the beneficiary of the petition.
(9) Certain victims of the September 11, 2001 terrorist attacks – (i) Entitlement to status. An alien shall be classifiable as a special immigrant under INA 203(b)(4) as specified in section 421 of Public Law 107-56, if:
(A) The consular officer has received a petition approved by the DHS to accord such classification, or official notification of such an approval, and the consular officer is satisfied from the evidence presented that the alien is entitled to that classification; or
(B) The alien is the spouse or child of an alien so classified in paragraph (d)(9)(i) of this section and is accompanying or following to join the principal alien.
(ii) Ineligibility exemption. An alien classified under paragraph (d)(9)(i) of this section shall not be subject to the provisions of INA 212(a)(4).
(iii) Priority date. Aliens entitled to status under paragraph (d)(9)(i) of this section shall be assigned a priority date as of the date the petition was filed under INA 204 for classification under section INA 203(b)(4) and visas shall be issued in the chronological order of application submission. However, in the event that the annual limit for immigrants under INA 203 is reached, the alien may retain the earlier priority date of the petition that was revoked.
(e) Fifth preference – Employment-creation immigrants – (1) Entitlement to status. An alien shall be classifiable as a fifth preference employment-creation immigrant if the consular officer has received from DHS an approved petition to accord such status, or official notification of such an approval, and the consular officer is satisfied that the alien is within the class described in INA 203(b)(5).
(2) Entitlement to derivative status. Pursuant to INA 203(d), and whether or not named in the petition, the spouse or child of an employment-based fifth preference immigrant, if not otherwise entitled to an immigrant status and the immediate issuance of a visa, is entitled to a derivative status corresponding to the classification and priority date of the beneficiary of the petition.
§ 42.33 Diversity immigrants.
(a) General – (1) Eligibility to compete for consideration under section 203(c). An alien will be eligible to compete for consideration for visa issuance under INA 203(c) during a fiscal year only if he or she is a native of a low-admission foreign state, as determined by the Secretary of Homeland Security pursuant to INA 203(c)(1)(E), with respect to the fiscal year in question; and if he or she has at least a high school education or its equivalent or, within the five years preceding the date of application for a visa, has two years of work experience in an occupation requiring at least two years training or experience. The eligibility for a visa under INA 203(c) ceases at the end of the fiscal year in question. Under no circumstances may a consular officer issue a visa or other documentation to an alien after the end of the fiscal year during which an alien possesses diversity visa eligibility.
(2) Definition of high school education or its equivalent. For the purposes of this section, the phrase high school education or its equivalent means the successful completion of a twelve-year course of elementary and secondary education in the United States or successful completion in another country of a formal course of elementary and secondary education comparable to completion of twelve years’ elementary and secondary education in the United States.
(3) Determinations of work experience. For all cases registered for the 2003 Diversity Visa Program and Diversity Visa Programs occurring in subsequent fiscal years, consular officers must use the Department of Labor’s O*Net On Line to determine qualifying work experience.
(4) Limitation on number of petitions per year. No more than one petition may be submitted by or on behalf of, any alien for consideration during any single fiscal year. If two or more petitions for any single fiscal year are submitted by, or on behalf of, any alien, all such petitions will be void pursuant to INA 204(a)(1)(I)(i) and the alien by or for whom the petition has been submitted will not be eligible for consideration for diversity visa issuance during the fiscal year in question.
(5) Northern Ireland. For purposes of determining eligibility to file a petition for consideration under INA 203(c) for a fiscal year, the districts comprising that portion of the United Kingdom of Great Britain and Northern Ireland, known as “Northern Ireland”, will be treated as a separate foreign state. The districts comprising “Northern Ireland” are Antrim, Ards, Armagh, Ballymena, Ballymoney, Banbridge, Belfast, Carrickfergus, Castlereagh, Coleraine, Cookstown, Craigavon, Down, Dungannon, Fermanagh, Larne, Limavady, Lisburn, Londonderry, Magherafelt, Moyle, Newry and Mourne, Newtownabbey, North Down, Omagh, and Strabane.
(b) Petition requirement. An alien claiming to be entitled to compete for consideration under INA 203(c) must file a petition with the Department of State for such consideration. At the alien petitioner’s request, another person may file a petition on behalf of the alien. The petition will consist of an electronic entry form that the alien petitioner or a person acting on the behalf of the alien petitioner must complete on-line and submit to the Department of State via a Web site established by the Department of State for the purpose of receiving such petitions. The Department will specify the address of the Web site prior to the commencement of the 30-day or greater period described in paragraph (b)(3) of this section using the notice procedure prescribed in that paragraph.
(1) Information to be provided in the petition. The website will include the electronic entry form mentioned in paragraph (b) of this section. The entry form will require the person completing the form to provide the following information, typed in the Roman alphabet, regarding the alien petitioner:
(i) The petitioner’s full name;
(ii) The petitioner’s date and place of birth (including city and country, province or other political subdivision of the country);
(iii) The petitioner’s gender;
(iv) The country of which the petitioner claims to be a native, if other than the country of birth;
(v) The name[s], date[s] and place[s] of birth and gender of the petitioner’s spouse and child[ren], if any, (including legally adopted and step-children), regardless of whether or not they are living with the petitioner or intend to accompany or follow to join the petitioner should the petitioner immigrate to the United States pursuant to INA 203(c), but excluding a spouse or a child[ren] who is already a U.S. citizen or U.S. lawful permanent resident;
(vi) A current mailing address for the petitioner;
(vii) The location of the consular office nearest to the petitioner’s current residence or, if in the United States, nearest to the petitioner’s last foreign residence prior to entry into the United States.
(2) Requirements for photographs. The petition will also require inclusion of a photograph of the petitioner and of his or her spouse and all unmarried children under the age of 21 years. The photographs must meet the following specifications:
(i) A digital image of the applicant from either a digital camera source or a scanned photograph via scanner. If scanned, the original photographic print must have been 2″ by 2″ (50mm × 50mm). Scanner hardware and digital image resolution requirements will be further specified in the public notice described in paragraph (b)(3) of this section.
(ii) The image must be in the Joint Photographic Experts Group (JPEG) File Interchange Format (JFIF) format.
(iii) The image must be in color.
(iv) The image must have been taken no more than six months prior to the date of the petition submission.
(v) The person being photographed must be directly facing the camera with the head neither tilted up, down, or to the side. The head must cover about 50% of the area of the photograph.
(vi) The photograph must be taken with the person in front of a neutral, light-colored background. Photos taken with very dark or patterned, busy backgrounds will not be accepted.
(vii) The person’s face must be in focus.
(viii) The person in the photograph must not wear eyeglasses, sunglasses, or other paraphernalia that obstruct the view of the face.
(ix) A photograph with the person wearing a head covering or a hat is only acceptable if the covering or hat is worn specifically due to that person’s religious beliefs, and even then, the hat or covering may not obscure any portion of the face. A photograph of a person wearing tribal, military, airline or other headgear not specifically religious in nature will not be accepted.
(3) Submission of petition. A petition for consideration for visa issuance under INA 203(c) must be submitted to the Department of State by electronic entry to an Internet website designated by the Department for that purpose. No fee will be collected at the time of submission of a petition, but a processing fee may be collected at a later date, as provided in paragraph (i) of this section. The Department will establish a period of not less than thirty days during each fiscal year within which aliens may submit petitions for approval of eligibility to apply for visa issuance during the following fiscal year. Each fiscal year the Department will give timely notice of both the website address and the exact dates of the petition submission period, as well as other pertinent information, through publication in the
(c) Processing of petitions. Entries received during the petition submission period established for the fiscal year in question and meeting all of the requirements of paragraph (b) of this section will be assigned a number in a separate numerical sequence established for each regional area specified in INA 203(c)(1)(F). Upon completion of the numbering of all petitions, all numbers assigned for each region will be separately rank-ordered at random by a computer using standard computer software for that purpose. The Department will then select in the rank orders determined by the computer program a quantity of petitions for each region estimated to be sufficient to ensure, to the extent possible, usage of all immigrant visas authorized under INA 203(c) for the fiscal year in question. The Department will consider petitions selected in this manner to have been approved for the purposes of this section.
(d) Validity of approved petitions. A petition approved pursuant to paragraph (c) of this section will be valid for a period not to exceed Midnight of the last day of the fiscal year for which the petition was approved. At that time, the Department of State will consider approval of the petition to cease to be valid pursuant to INA 204(a)(1)(I)(ii)(II), which prohibits issuance of visas based upon petitions submitted and approved for a fiscal year after the last day of that fiscal year.
(e) Order of consideration. Consideration for visa issuance to aliens whose petitions have been approved pursuant to paragraph (c) of this section will be in the regional rank orders established pursuant that paragraph.
(f) Allocation of visa numbers. To the extent possible, diversity immigrant visa numbers will be allocated in accordance with INA 203(c)(1)(E) and will be allotted only during the fiscal year for which a petition to accord diversity immigrant status was submitted and approved. Under no circumstances will immigrant visa numbers be allotted after midnight of the last day of the fiscal year for which the petition was submitted and approved.
(g) Further processing. The Department will inform applicants whose petitions have been approved pursuant to paragraph (c) of this section of the steps necessary to meet the requirements of INA 222(b) in order to apply formally for an immigrant visa.
(h) Maintenance of certain information. (1) The Department will compile and maintain the following information concerning petitioners to whom immigrant visas are issued under INA 203(c):
(i) Age;
(ii) Country of birth;
(iii) Marital status;
(iv) Sex;
(v) Level of education; and
(vi) Occupation and level of occupational qualification.
(2) The Department will not maintain the names of visa recipients in connection with this information and the information will be compiled and maintained in such form that the identity of visa recipients cannot be determined therefrom.
(i) Diversity Visa Lottery fee. Consular officers shall collect, or ensure the collection of, the Diversity Visa Lottery fee from those persons who apply for a diversity immigrant visa, described in INA 203(c), after being selected by the diversity visa lottery program. The Diversity Visa Lottery fee, as prescribed by the Secretary of State, is set forth in the Schedule of Fees, 22 CFR 22.1.
§ 42.34 Special immigrant visas – certain U.S. Government employees.
(a) General. (1) An alien is classifiable under INA 203(b)(4) as a special immigrant described in INA 101(a)(27)(D) provided:
(i) The alien has performed faithful service to the United States Government abroad, or of the American Institute in Taiwan, for a total of fifteen years, or more;
(ii) The principal officer of a Foreign Service establishment (or, in the case of the American Institute in Taiwan, the Director), recommends granting special immigrant status to such alien in exceptional circumstances;
(iii) The Secretary of State, or designee, approves such recommendation and finds that it is in the national interest to grant such status.
(b) Petition requirement. An alien who seeks classification as a special immigrant under INA 203(b)(4) based on service as an employee to the U.S. government abroad or American Institute in Taiwan must file a Form DS-1884, Petition to Classify Special Immigrant under INA 203(b)(4) as an Employee or Former Employee of the U.S. Government Abroad, with the Department of State. An alien may file such a petition only after, but within one year of, notification from the Department that the Secretary of State or designee has approved a recommendation from the principal officer that special immigrant status be accorded the alien in exceptional circumstances, and has found it in the national interest to do so.
(1) Petition fees. The Secretary of State shall establish a fee for the filing of a petition to accord status under INA 203(b)(4) which shall be collected following notification that the Secretary of State, or designee, has approved the recommendation that the alien be granted status as a special immigrant under INA 101(a)(27)(D).
(2) Establishing priority date. The priority date of an alien seeking status under INA 203(b)(4) as a special immigrant described in 101(a)(27)(D) shall be the date on which the petition to accord such classification, the DS-1884, is filed. The filing date of the petition is the date on which a properly completed form and the required fee are accepted by a Foreign Service post. Pursuant to INA 203(d), and whether or not named in the petition, the spouse or child of an alien classified under INA 203(b)(4), if not otherwise entitled to an immigrant status and the immediate issuance of a visa, is entitled to the classification and priority date of the beneficiary of the petition.
(3) Delegation of authority to approve petitions. The authority to approve petitions to accord status under INA 203(b)(4) to an alien described in INA 101(a)(27)(D) is hereby delegated to the chief consular officer at the post of recommendation or, in the absence of the consular officer, to any alternate approving officer designated by the principal officer. Such authority may not be exercised until the Foreign Service post has received formal notification of the Secretary of State or designee’s approval of special immigrant status for the petitioning alien.
(4) Petition validity. Except as noted in this paragraph, the validity of a petition approved for classification under INA 203(b)(4) shall be six months beyond the date of the Secretary of State’s approval thereof or the availability of a visa number, whichever is later.
(5) Extension of special immigrant status and petition validity. If the principal officer of a post concludes that circumstances in a particular case are such that an extension of validity of the Secretary of State or designee’s approval of the principal officer’s recommendation or of the petition would be in the national interest, the principal officer shall recommend to the Secretary of State or designee that such validity be extended for not more than one additional year.
(c) Definitions – (1) Full-time service. An alien must have been employed for a total of at least 15 full-time years, or the equivalent thereof, in the service of the U.S. government abroad. The number of hours per week that qualify an employee as full-time is dependent on local law and prevailing practice in the country where the alien is or was employed, as reflected in the employment documentation submitted with the application for special immigrant status. An alien may qualify as a special immigrant under INA 101(a)(27)(D) on the basis of employment abroad with one or more than one agency of the U.S. government provided the total amount of full-time service with the U.S. government is 15 years or more, or the equivalent thereof.
(2) Faithful service. An alien must have performed faithfully in the position held. The principal officer has the primary responsibility for determining whether the alien’s service meets this requirement. A record of disciplinary actions that have been taken against the alien does not automatically disqualify the alien. The principal officer must assess the disciplinary action in light of the extent and gravity of the misconduct and when it occurred and determine whether the record as a whole, notwithstanding disciplinary actions, is one of faithful service.
(3) Continuity. The alien’s period of service need not have been continuous.
(4) Abroad. The service must have occurred anywhere outside the United States, as the term “United States” is defined in INA 101(a)(38).
(5) Employment at the American Institute in Taiwan. INA 101(a)(27)(D) permits both present and former employees of the American Institute in Taiwan to apply for special immigrant status. An alien’s service before and after the founding of the American Institute in Taiwan is counted toward the minimum 15 years of service requirement.
(6) Honorably retired. Separations within the meaning of “honorably retired” include, for example, those resulting from mandatory or voluntary retirement, reduction-in-force, or resignation for personal reasons. Separations not within the meaning of “honorably retired” would include a termination for cause or an involuntary termination or resignation in lieu of a termination for cause.
(7) Definition of exceptional circumstances. The principal officer must determine that an alien demonstrates at least one form of “exceptional circumstances” to support an application for special immigrant status.
(i) Prima facie indicators of exceptional circumstances. In the following situations an alien’s service with the U.S. government generally will be deemed to have met exceptional circumstances.
(A) Diplomatic relations between the alien’s country of nationality and the United States have been severed;
(B) Diplomatic relations between the country in which the alien was employed and the United States have been severed;
(C) The country in which the alien was employed and the United States have strained relations and the employee may be subjected to retribution by the local, State, Federal, or other official government body merely because of association with the U.S. government, or the alien may be pressured to divulge information contrary to U.S. national interests; or
(D) The alien was hired as an employee at the Consulate General at Hong Kong on or before July 1, 1999.
(ii) Strong indicators of exceptional circumstances. (A) It is believed that continued service to the U.S. government might endanger the life of the alien;
(B) The alien has, fulfilled responsibilities or given service in a manner that approaches the heroic;
(C) The alien has been awarded a global or a regional “Foreign Service National of the Year” Award;
(D) The alien has disclosed waste, fraud or abuse, a substantial and specific danger to public health or safety, or a violation of law, rule, or regulation within the Department or other U.S. government agency, if such disclosure results in significant action by the Department or other U.S. government agency against an offending party, such as termination or severance of a contractual relationship, or criminal charges against any person or entity;
(E) The employee has served the U.S. government for a period of twenty years or more.
(8) Immediate intent to immigrate. (i) The recommendation of the principal officer must certify that the employee being recommended is prepared to pursue an immigrant visa application within one year of the Department’s notification to the post of approval of special immigrant status and, if the employee is not honorably retired, that the employee intends permanent separation from U.S. government employment abroad no later than the date of departure for the United States following issuance of an immigrant visa.
(ii) Employees of Hong Kong Consulate General hired on or before July 1, 1999, are not required to establish immediate intent to immigrate. Employees of the Hong Kong Consulate General who received or were approved for special immigrant status before July 1, 1999, also may continue employment with the U.S. government.
Subpart E – Petitions
§ 42.41 Effect of approved petition.
Consular officers are authorized to grant to an alien the immediate relative or preference status accorded in a petition approved in the alien’s behalf upon receipt of the approved petition or official notification of its approval. The status shall be granted for the period authorized by law or regulation. The approval of a petition does not relieve the alien of the burden of establishing to the satisfaction of the consular officer that the alien is eligible in all respects to receive a visa.
§ 42.42 Petitions for immediate relative or preference status.
Petition for immediate relative or preference status. The consular officer may not issue a visa to an alien as an immediate relative entitled to status under 201(b), a family-sponsored immigrant entitled to preference status under 203(a)(1)-(4), or an employment-based preference immigrant entitled to status under INA 203(b)(1)-(5), unless the officer has received a petition filed and approved in accordance with INA 204 or official notification of such filing and approval.
§ 42.43 Suspension or termination of action in petition cases.
(a) Suspension of action. The consular officer shall suspend action in a petition case and return the petition, with a report of the facts, for reconsideration by DHS if the petitioner requests suspension of action, or if the officer knows or has reason to believe that approval of the petition was obtained by fraud, misrepresentation, or other unlawful means, or that the beneficiary is not entitled, for some other reason, to the status approved.
(b) Termination of action. (1) The consular officer shall terminate action in a petition case upon receipt from DHS of notice of revocation of the petition in accordance with DHS regulations.
(2) The consular officer shall terminate action in a petition case subject to the provisions of INA 203(g) in accordance with the provisions of § 42.83.
Subpart F – Numerical Controls and Priority Dates
§ 42.51 Department control of numerical limitations.
(a) Centralized control. Centralized control of the numerical limitations on immigration specified in INA 201, 202, and 203 is established in the Department. The Department shall limit the number of immigrant visas that may be issued and the number of adjustments of status that may be granted to aliens subject to these numerical limitations to a number:
(1) Not to exceed 27 percent of the world-wide total made available under INA 203 (a), (b) and (c) in any of the first three quarters of any fiscal year; and
(2) Not to exceed, in any month of a fiscal year, 10% of the world-wide total made available under INA 203 (a), (b) and (c) plus any balance remaining from authorizations for preceding months in the same fiscal year.
(b) Allocation of numbers. Within the foregoing limitations, the Department shall allocate immigrant visa numbers for use in connection with the issuance of immigrant visas and adjustments based on the chronological order of the priority dates of visa applicants classified under INA 203 (a) and (b) reported by consular officers pursuant to § 42.55(b) and of applicants for adjustment of status as reported by officers of the DHS, taking into account the requirements of INA 202(e) in such allocations. In the case of applicants under INA 203(c), visa numbers shall be allocated within the limitation for each specified geographical region in the random order determined in accordance with sec. 42.33(c) of this part.
(c) Recaptured visa numbers. An immigrant visa number shall be returned to the Department for reallocation within the fiscal year in which the visa was issued when:
(1) An immigrant having an immigrant visa is excluded from the United States and deported;
(2) An immigrant does not apply for admission to the United States before the expiration of the validity of the visa;
(3) An alien having a preference immigrant visa is found not to be a preference immigrant; or
(4) An immigrant visa is revoked pursuant to § 42.82.
§ 42.52 Post records of visa applications.
(a) Waiting list. Records of individual visa applicants entitled to an immigrant classification and their priority dates shall be maintained at posts at which immigrant visas are issued. These records shall indicate the chronological and preferential order in which consideration may be given to immigrant visa applications within the several immigrant classifications subject to the numerical limitations specified in INA 201, 202, and 203. Similar records shall be kept for the classes specified in INA 201(b)(2) and 101(a)(27) (A) and (B) which are not subject to numerical limitations. The records which pertain to applicants subject to numerical limitations constitute “waiting lists” within the meaning of INA 203(e)(3) as redesignated by the Immigration Act of 1990.
(b) Entitlement to immigrant classification. An alien shall be entitled to immigrant classification if the alien:
(1) Is the beneficiary of an approved petition according immediate relative or preference status;
(2) Has satisfied the consular officer that the alien is entitled to special immigrant status under INA(101)(a)(27) (A) or (B);
(3) Is entitled to status as a Vietnam Amerasian under section 584(b)(1) of section 101(e) of Public Law 100-202 as amended by Public Law 101-167 and re-amended by Public Law 101-513; or
(4) Beginning in FY-95, is entitled to status as a diversity immigrant under INA 203(c).
(c) Record made when entitlement to immigrant classification is established. (1) A record that an alien is entitled to an immigrant visa classification shall be made whenever the consular officer is satisfied – or receives evidence – that the alien is within the criteria set forth in paragraph (b) of this section.
(2) A separate record shall be made of family members entitled to derivative immigrant status whenever the consular officer determines that a spouse or child is chargeable to a different foreign state or other numerical limitation than the principal alien. The provisions of INA 202(b) are to be applied as appropriate when either the spouse or parent is reached on the waiting list.
(3) A separate record shall be made of a spouse or child entitled to derivative immigrant status whenever the consular officer determines that the principal alien intends to precede the family.
§ 42.53 Priority date of individual applicants.
(a) Preference applicant. The priority date of a preference visa applicant under INA 203 (a) or (b) shall be the fiing date of the approved petition that accorded preference status.
(b) Former Western Hemisphere applicant with priority date prior to January 1, 1977. Notwithstanding the provisions of paragraph (a) of this section, an alien who, prior to January 1, 1977, was subject to the numerical limitation specified in section 21(e) of the Act of October 3, 1965, and who was registered as a Western Hemisphere immigrant with a priority date prior to January 1, 1977, shall retain that priority date as a preference immigrant upon approval of a petition according status under INA 203 (a) or (b).
(c) Derivative priority date for spouse or child of principal alien. A spouse or child of a principal alien acquired prior to the principal alien’s admission shall be entitled to the priority date of the principal alien, whether or not named in the immigrant visa application of the principal alien. A child born of a marriage which existed at the time of a principal alien’s admission to the United States is considered to have been acquired prior to the principal alien’s admission.
§ 42.54 Order of consideration.
(a) General. Consular officers shall request applicants to take the steps necessary to meet the requirements of INA 222(b) in order to apply formally for a visa as follows:
(1) In the chronological order of the priority dates of all applicants within each of the immigrant classifications specified in INA 203 (a) and (b); and
(2) In the random order established by the Secretary of State for each region for the fiscal year for applicants entitled to status under INA 203(c).
(b) [Reserved]
§ 42.55 Reports on numbers and priority dates of applications on record.
(a) Consular officers shall report periodically, as the Department may direct, the number and priority dates of all applicants subject to the numerical limitations prescribed in INA 201, 202, and 203 whose immigrant visa applications have been recorded in accordance with § 42.52(c).
(b) Documentarily qualified applicants. Consular officers shall also report periodically, as the Department may direct, the number and priority dates of all applicants described in paragraph (a) of this section who have informed the consular office that they have obtained the documents required under INA 222(b), for whom the necessary clearance procedures have been completed.
Subpart G – Application for Immigrant Visas
§ 42.61 Place of application.
(a) Alien to apply in consular district of residence. Unless otherwise directed by the Department, an alien applying for an immigrant visa shall make application at the consular office having jurisdiction over the alien’s place of residence; except that, unless otherwise directed by the Department, an alien physically present in an area but having no residence therein may make application at the consular office having jurisdiction over that area if the alien can establish that he or she will be able to remain in the area for the period required to process the application. Finally, a consular office may, as a matter of discretion, or shall, at the direction of the Department, accept an immigrant visa application from an alien who is neither a resident of, nor physically present in, the area designated for that office for such purpose. For the purposes of this section, an alien physically present in the United States shall be considered to be a resident of the area of his or her last residence prior to entry into the United States.
(b) Transfer of immigrant visa cases. (1) All documents, papers, and other evidence relating to an applicant whose case is pending or has been refused at one post may be transferred to another post at the applicant’s request and risk when there is reasonable justification for the transfer and the transferring post has no reason to believe that the alien will be unable to appear at the receiving post.
(2) Any approved petition granting immediate relative or preference status should be included among the documents when a case is transferred from one post to another.
(3) In no case may a visa number be transferred from one post to another. A visa number which cannot be used as a result of the transfer must be returned to the Department immediately.
§ 42.62 Personal appearance and interview of applicant.
(a) Personal appearance of applicant before consular officer. Every applicant applying for an immigrant visa other than an applicant described in paragraph (c) of this section, including an applicant whose application is executed by another person pursuant to § 42.63(a)(2), shall be required to appear personally before a consular officer for the execution of the application or, if in Taiwan, before a designated officer of the American Institute in Taiwan, except that the personal appearance of any child under the age of 14 may be waived at the officer’s discretion.
(b) Interview by consular officer. (1) Every applicant executing an immigrant visa application other than an applicant described in paragraph (c) of this section must be interviewed by a consular officer who shall determine on the basis of the applicant’s representations and the visa application and other relevant documentation –
(i) The proper immigrant classification, if any, of the visa applicant, and
(ii) The applicant’s eligibility to receive a visa.
(2) The officer has the authority to require that the alien answer any question deemed material to these determinations.
(c) Certain repeat applications due to COVID-19. The personal appearance and interview of any applicant for an immigrant visa may be waived in the discretion of the consular officer until December 13, 2023, provided that –
(1) The applicant was issued a U.S. immigrant visa on or after August 4, 2019, and is:
(i) Seeking an immigrant visa in the same classification and pursuant to the same approved petition as the previously issued immigrant visa; or
(ii) Seeking an immigrant visa pursuant to the same approved petition as the previously issued immigrant visa but in a classification that automatically converted from the classification of the previously issued immigrant visa due to the death or naturalization of the petitioner;
(2) The applicant qualifies for an immigrant visa in the same classification as the previously issued immigrant visa, or in another classification as a result of automatic conversion from the classification of the previously issued immigrant visa due to the death or naturalization of the petitioner, and pursuant to the same approved petition as the previously issued immigrant visa; and
(3) The applicant has not undergone a change in circumstances that could affect the applicant’s eligibility for the visa.
§ 42.63 Definitions.
(a) Application forms – (1) Application on Form DS-230 or Form DS-260 required. Every alien applying for an immigrant visa must make application, as directed by the consular officer, on Form DS-230, Application for Immigrant Visa and Alien Registration, or on Form DS-260, Electronic Application for Immigrant Visa and Alien Registration. This requirement may not be waived. Form DS-230 consists of parts I and II which, together, are meant in any reference to this Form.
(2) Application of alien under 14 or physically incapable. The application on Form DS-230 or on Form DS-260 for an alien under 14 years of age or one physically incapable of completing an application may be executed by the alien’s parent or guardian, or, if the alien has no parent or guardian, by any person having legal custody of, or a legitimate interest in, the alien.
(b) Preparation of forms. The consular officer shall ensure that Form DS-230 or Form DS-260 and all other forms an alien is required to submit are fully and properly completed in accordance with the applicable regulations and instructions.
(c) Additional information as part of application. The officer may require the submission of additional information or question the alien on any relevant matter whenever the officer believes that the information provided in Form DS-230 or Form DS-260 is inadequate to determine the alien’s eligibility to receive an immigrant visa. Additional statements made by the alien become a part of the visa application. All documents required under the authority of § 42.62 are considered papers submitted with the alien’s application within the meaning of INA 221(g)(1).
§ 42.64 Passport requirements.
(a) Passport defined. Passport, as defined in INA 101(a)(30), is not limited to a national passport or to a single document. A passport may consist of two or more documents which, when considered together, fulfill the requirements of a passport, provided that documentary evidence of permission to enter a foreign country has been issued by a competent authority and clearly meets the requirements of INA 101(a)(30).
(b) Passport validity requirements. Except as provided in § 42.2, every applicant for an immigrant visa shall present a passport, as defined in INA 101(a)(30), that is valid for at least 60 days beyond the period of validity of the visa. The 60-day additional validity requirement does not apply to an applicant who would be excepted as provided in § 42.2 were it not for the fact that the applicant is applying in the country of which the applicant is a national and the possession of a passport is required for departure. Such an applicant may be issued a visa valid for 6 months or for such shorter period as will assure its expiration in unison with the passport.
(c) A single passport including more than one person. The passport requirement of this section may be met by the presentation of a passport including more than one person, if such inclusion is authorized under the laws or regulations of the issuing authority and if a photograph of each person 16 years of age or over is attached to the passport by the issuing authority.
§ 42.65 Supporting documents.
(a) Authority to require documents. The consular officer is authorized to require documents considered necessary to establish the alien’s eligibility to receive an immigrant visa. All such documents submitted and other evidence presented by the alien, including briefs submitted by attorneys or other representatives, shall be considered by the officer.
(b) Basic documents required. An alien applying for an immigrant visa shall be required to furnish, if obtainable: A copy of a police certificate or certificates; a certified copy of any existing prison record, military record, and record of birth; and a certified copy of all other records or documents which the consular officer considers necessary.
(c) Definitions. (1) Police certificate means a certification by the police or other appropriate authorities reporting information entered in their records relating to the alien. In the case of the country of an alien’s nationality and the country of an alien’s current residence (as of the time of visa application) the term “appropriate police authorities” means those of a country, area or locality in which the alien has resided for at least six months. In the case of all other countries, areas, or localities, the term “appropriate police authorities” means the authorities of any country, area, or locality in which the alien has resided for at least one year. A consular officer may require a police certificate regardless of length of residence in any country if he or she has reason to believe that a police record exists in the country, area, or locality concerned.
(2) Prison record means an official document containing a report of the applicant’s record of confinement and conduct in a penal or correctional institution.
(3) Military record means an official document containing a complete record of the applicant’s service and conduct while in military service, including any convictions of crime before military tribunals as distinguished from other criminal courts. A certificate of discharge from the military forces or an enrollment book belonging to the applicant shall not be acceptable in lieu of the official military record, unless it shows the alien’s complete record while in military service. The applicant may, however, be required to present for inspection such a discharge certificate or enrollment book if deemed necessary by the consular officer to establish the applicant’s eligibility to receive a visa.
(4) A certified copy of an alien’s record of birth means a certificate issued by the official custodian of birth records in the country of birth showing the date and place of birth and the parentage of the alien, based upon the original registration of birth.
(5) Other records or documents include any records or documents establishing the applicant’s relationship to a spouse or children, if any, and any records or documents pertinent to a determination of the applicant’s identity, classification, or any other matter relating to the applicant’s visa eligibility.
(d) Unobtainable documents. (1) If the consular officer is satisfied, or the catalogue of available documents prepared by the Department indicates, that any document or record required under this section is unobtainable, the officer may permit the immigrant to submit other satisfactory evidence in lieu of such document or record. A document or other record shall be considered unobtainable if it cannot be procured without causing to the applicant or a family member actual hardship as opposed to normal delay and inconvenience.
(2) If the consular officer determines that a supporting document, as described in paragraph (b) of this section, is in fact unobtainable, although the catalogue of available documents shows it is available, the officer shall affix to the visa application a signed statement describing in detail the reasons for considering the record or document unobtainable and for accepting the particular secondary evidence attached to the visa.
(e) Authenticity of records and documents. If the consular officer has reason to believe that a required record or document submitted by an applicant is not authentic or has been altered or tampered with in any material manner, the officer shall take such action as may be necessary to determine its authenticity or to ascertain the facts to which the record or document purports to relate.
(f) Photographs. Every alien shall furnish color photographs of the number and specifications prescribed by the Department, except that, in countries where facilities for producing color photographs are unavailable as determined by the consular officer, black and white photographs may be substituted.
§ 42.66 Medical examination.
(a) Medical examination required of all applicants. Before the issuance of an immigrant visa, the consular officer shall require every alien, regardless of age, to undergo a medical examination in order to determine eligibility to receive a visa.
(b) Examination by physician from approved panel. The required examination shall be conducted in accordance with requirements and procedures established by the United States Public Health Service and by a physician selected by the alien from a panel of physicians approved by the consular officer.
(c) Facilities required for panel physician. A consular officer shall not include the name of a physician on the panel of physicians referred to in paragraph (b) of this section unless the physician has facilities to perform required serological and X-ray tests or is in a position to refer applicants to a qualified laboratory for such tests.
§ 42.67 Execution of application, registration, and fingerprinting.
(a) Execution of visa application – (1) Application fee. A fee is prescribed for each application for an immigrant visa. It shall be collected prior to the execution of the application and a receipt shall be issued.
(2) Oath and signature on Form DS-230. The applicant shall be required to read the Form DS-230, Application for Immigrant Visa and Alien Registration, when it is completed, or it shall be read to the applicant in the applicant’s language, or the applicant shall otherwise be informed of its full contents. Applicants shall be asked whether they are willing to subscribe thereto. If the applicant is not willing to subscribe to the application unless changes are made in the information stated therein, the required changes shall be made. The application shall then be sworn to or affirmed and signed by or on behalf of the applicant before a consular officer, or a designated officer of the American Institute of Taiwan, who shall then sign the application over the officer’s title.
(3) Oath and signature on Form DS-260. The applicant shall be required to read the Form DS-260, Electronic Application for Immigrant Visa and Alien Registration, when it has been completed, or it shall be read to the applicant in the applicant’s language, or the applicant shall otherwise be informed of its full contents, before the applicant electronically signs and submits the application to the Department. At the time of the applicant’s interview the applicant shall be asked whether they are willing to subscribe thereto to the information provided on Form DS-260. If the alien is not willing to subscribe to the application unless changes are made in the information stated therein, the required changes shall be made. The application shall then be sworn to or affirmed and signed, biometrically, by or on behalf of the applicant before a consular officer, or a designated officer of the American Institute of Taiwan, who shall then electronically sign the application.
(4) Form of attestation for certain repeat applications due to COVID-19. The swearing to or signature of an application before a consular officer by an immigrant visa applicant may be waived in the discretion of the consular officer until December 13, 2023, provided the applicant is willing to affirm under penalty of perjury to the information provided on Form DS-260 or Form DS-230.
(b) Registration. The alien shall be considered to be registered for the purposes of INA 221(b) and 203(g) upon the filing of Form DS-230 or Form DS-260, when duly executed, or the transmission by the Department to the alien of a notification of the availability of an immigrant visa, whichever occurs first.
(c) Fingerprinting. Every applicant for an immigrant visa must furnish fingerprints prior to the execution of Form DS-230 or Form DS-260.
§ 42.68 Informal evaluation of family members if principal applicant precedes them.
(a) Preliminary determination of visa eligibility. If a principal applicant proposes to precede the family to the United States, the consular officer may arrange for an informal examination of the other members of the principal applicant’s family in order to determine whether there exists at that time any mental, physical, or other ground of ineligibility on their part to receive a visa.
(b) When family member ineligible. In the event the consular officer finds that any member of such family would be ineligible to receive an immigrant visa, the principal applicant shall be informed and required to acknowledge receipt of this information in writing.
(c) No guarantee of future eligibility. A determination in connection with an informal examination that an alien appears to be eligible for a visa carries no assurance that the alien will be issued an immigrant visa in the future. The principal applicant shall be so informed and required to acknowledge receipt of this information in writing. The question of visa eligibility can be determined definitively only at the time the family member applies for a visa.
Subpart H – Issuance of Immigrant Visas
§ 42.71 Authority to issue visas; visa fees.
(a) Authority to issue visas. Consular officers may issue immigrant visas at designated consular offices abroad pursuant to the authority contained in INA 101(a)(16), 221(a), and 224.
(b) Immigrant visa fees – (1) Payment of fees. The Secretary of State prescribes a fee for the processing of immigrant visa applications. Except as provided in paragraphs (b)(2) and (3) of this section, an individual registered for immigrant visa processing at a post designated for this purpose by the Deputy Assistant Secretary for Visa Services must pay the fee upon being notified that a visa is expected to become available in the near future, and upon being requested to obtain the supporting documentation needed to apply formally for a visa, in accordance with instructions received with such notification. The fee must be paid before an applicant at a post so designated will receive an appointment to appear and make application before a consular officer. Applicants at a post not yet so designated will pay the fee immediately prior to formal application for a visa. A fee collected for the processing of an immigrant visa application is refundable only if the principal officer of a post or the officer in charge of a consular section determines that the application was not adjudicated as a result of action by the U.S. Government over which the alien had no control and for which the alien was not responsible, which precluded the applicant from benefitting from the processing, or as provided in paragraph (b)(2) of this section.
(2) Waiver or refund of fees for replacement immigrant visas for adoptees. The consular officer shall waive the application processing fee for a replacement immigrant visa or, upon request, refund such a fee where already paid, if the consular officer is satisfied that the alien, the alien’s parent(s), or the alien’s representative has established that:
(i) The prior immigrant visa was issued on or after March 27, 2013, to an alien who has been lawfully adopted, or who is coming to the United States to be adopted, by a United States citizen;
(ii) The alien was unable to use the original immigrant visa during the period of its validity as a direct result of extraordinary circumstances, including the denial of an exit permit; and
(iii) The inability to use the visa was attributable to factors beyond the control of the adopting parent or parents and of the alien.
(3) Exemption from fees for immigrant visa applicants previously refused solely pursuant to Proclamation 9645 or Proclamation 9983. An immigrant visa applicant shall be exempt from the application processing fee and the affidavit of support review fee, if the applicant was previously denied an immigrant visa on or between December 8, 2017, and January 19, 2020; the sole ground of ineligibility was based on Proclamation 9645 or 9983; and the applicant is applying again for an immigrant visa. This paragraph (b)(3) provides only for a one-time exemption of the applicable fees per applicant.
§ 42.72 Validity of visas.
(a) Period of validity. With the exception indicated herein, the period of validity of an immigrant visa shall not exceed six months, beginning with the date of issuance. Any visa issued to a child lawfully adopted by a U.S. citizen and spouse while such citizen is serving abroad in the U.S. Armed Forces, is employed abroad by the U.S. Government, or is temporarily abroad on business, however, shall be valid until such time, for a period not to exceed 3 years, as the adoptive citizen parent returns to the United States in the course of that parent’s military service, U.S. Government employment, or business.
(b) Extension of period of validity. If the visa was originally issued for a period of validity less than the maximum authorized by paragraph (a) of this section, the consular officer may extend the validity of the visa up to but not exceeding the maximum period permitted. If an immigrant applies for an extension at a consular office other than the issuing office, the consular officer shall, unless the officer is satisfied beyond doubt that the alien is eligible for the extension, communicate with the issuing office to determine if there is any objection to an extension. In extending the period of validity, the officer shall make an appropriate notation on the visa of the new expiration date, sign the document with title indicated, and impress the seal of the office thereon.
(c) [Reserved]
(d) Age and marital status in relation to validity of certain immigrant visas. In accordance with § 42.64(b), the validity of a visa may not extend beyond a date sixty days prior to the expiration of the passport. The period of validity of a visa issued to an immigrant as a child shall not extend beyond the day immediately proceding the date on which the alien becomes 21 years of age. The consular officer shall warn an alien, when appropriate, that the alien will be admissible as such an immigrant only if unmarried and under 21 years of age at the time of application for admission at a U.S. port of entry. The consular officer shall also warn an alien issued a visa as a first or second preference immigrant as an unmarried son or daughter of a citizen or lawful permanent resident of the United States that the alien will be admissible as such an immigrant only if unmarried at the time of application for admission at a U.S. port of entry.
§ 42.73 Procedure in issuing visas.
(a) Evidence of visa. An immigrant visa shall be evidenced by a physical visa or by an electronic visa located in the Department’s records. The appropriate symbol as prescribed in § 42.11, showing the classification of the alien, shall be entered on the visa.
(b) Visa format. A machine-readable visa shall be in the format designated by the Department, and contain, at a minimum, the following data:
(1) Full name of the immigrant;
(2) Visa symbol;
(3) Location of the visa issuing office;
(4) Passport number;
(5) The registration number (A-number) assigned to the immigrant;
(6) Sex;
(7) Date of birth;
(8) Nationality;
(9) Date of issuance;
(10) Date of expiration;
(11) Visa control number;
(12) Any annotations entered to reflect waivers or other information useful to an immigration officer at a port of entry (POE) upon the immigrant’s application for admission to the United States;
(13) A digitized photo of the immigrant; and
(14) Machine-readable data that can be processed by an immigration officer at a POE.
(c) Disposition of supporting documents. Post shall, wherever possible, return original supporting documents furnished by the alien. Duplicate copies may be retained in the consular system, as required or necessary.
§ 42.74 Issuance of new, replacement, or duplicate visas.
(a) New immigrant visa for a special immigrant under INA 101(a)(27)(A) and (B). The consular officer may issue a new immigrant visa to a qualified alien entitled to status under INA 101(a)(27)(A) or (B), provided that:
(1) The alien establishes that the original visa has been lost, mutilated, or has expired; or that the alien will be unable to use it during the period of its validity; and
(2) The alien pays anew the application processing fees prescribed in the Schedule of Fees (22 CFR 22.1); and
(3) The consular officer ascertains whether the original issuing office knows of any reason why a new visa should not be issued.
(b) Replacement immigrant visa for an immediate relative or for an alien subject to numerical limitation. A consular officer may issue a replacement visa under the original number of a qualified alien entitled to status as an immediate relative (INA 201(b)(2)), a family or employment preference immigrant (INA 203(a) or (b)), or a diversity immigrant (INA 203(c)), if –
(1) The alien is unable to use the visa during the period of its validity due to reasons beyond the alien’s control;
(2) The visa is issued during the same fiscal year in which the original visa was issued, or in the following year in the case of an immediate relative only, if the original number had been reported as recaptured;
(3) The number has not been returned to the Department as a “recaptured visa number” in the case of a preference or diversity immigrant;
(4) The alien pays anew the application processing fees prescribed in the Schedule of Fees; and
(5) The consular officer ascertains whether the original issuing office knows of any reason why a new visa should not be issued.
(c) Replacement visa for adoptees. A consular officer may issue a replacement immigrant visa to a qualified alien, if the conditions in paragraphs (a)(1) and (3) of this section are met, and if the consular officer determines –
(1) A prior immigrant visa was issued on or after March 27, 2013, to a child who has been lawfully adopted, or who is coming to the United States to be adopted, by a United States citizen;
(2) The inability to use the visa was attributable to factors beyond the control of the adoptee or the adopting parent(s); and
(3) The application processing fee has been waived pursuant to § 42.71(b)(2) or has been paid anew.
(d) Duplicate visas issued within the validity period of the original visa. If the validity of a visa previously issued has not yet terminated and the original visa has been lost or mutilated, a duplicate visa may be issued containing all of the information appearing on the original visa, including the original issuance and expiration dates. The applicant shall execute a new application and provide copies of the supporting documents submitted in support of the original application. The alien must pay anew the application processing fees prescribed in the Schedule of Fees.
Subpart I – Refusal, Revocation, and Termination of Registration
§ 42.81 Procedure in refusing immigrant visas.
(a) Grounds for refusal. When a visa application has been properly completed and executed before a consular officer in accordance with the provisions of the INA and the implementing regulations, the consular officer must issue the visa, refuse the visa under INA 212(a) or 221(g) or other applicable law or, pursuant to an outstanding order under INA 243(d), discontinue granting the visa.
(b) Refusal procedure. A consular officer may not refuse an immigrant visa until either Form DS-230, Application for Immigrant Visa and Alien Registration, or Form DS-260, Electronic Application for Immigrant Visa and Alien Registration, has been executed by the applicant. When an immigrant visa is refused, an appropriate record shall be made in duplicate on a form prescribed by the Department. The form shall be signed and dated by the consular officer. The consular officer shall inform the applicant of the provision of law or implementing regulation on which the refusal is based and of any statutory provision of law or implementing regulation under which administrative relief is available. Each document related to the refusal shall then be attached to Form DS-230 for retention in the refusal files. Alternatively, each document related to the refusal shall be electronically scanned and electronically attached to Form DS-260 for retention in the electronic refusal files. Any documents not related to the refusal shall be returned to the applicant. The original copy of a document that was scanned and attached to the DS-260 for the refusal file shall be returned to the applicant. If the ground of ineligibility may be overcome by the presentation of additional evidence and the applicant indicates an intention to submit such evidence, all documents may, with the consent of the alien, be retained in the consular files for a period not to exceed one year. If the refusal as not been overcome within one year, any documents not relating to the refusal shall be removed from the file and returned to the alien.
(c) Review of refusal at consular office. If the grounds of ineligibility upon which the visa was refused cannot be overcome by the presentation of additional evidence, the principal consular officer at a post, or a specifically designated alternate, shall review the case without delay, record the review decision, and sign and date the prescribed form. If the grounds of ineligibility may be overcome by the presentation of additional evidence and the applicant indicates the intention to submit such evidence, a review of the refusal may be deferred. If the principal consular officer or alternate does not concur in the refusal, that officer shall either (1) refer the case to the Department for an advisory opinion, or (2) assume responsibility for final action on the case.
(d) Review of refusal by Department. The Department may request a consular officer in an individual case or in specified classes of cases to submit a report if an immigrant visa has been refused. The Department will review each report and may furnish an advisory opinion to the consular officer for assistance in considering the case further. If the officer believes that action contrary to an advisory opinion should be taken, the case shall be resubmitted to the Department with an explanation of the proposed action. Rulings of the Department concerning an interpretation of law, as distinguished from an application of the law to the facts, are binding upon consular officers.
(e) Reconsideration of refusal. If a visa is refused, and the applicant within one year from the date of refusal adduces further evidence tending to overcome the ground of ineligibility on which the refusal was based, the case shall be reconsidered. In such circumstance, an additional application fee shall not be required.
§ 42.82 Revocation of visas.
(a) Grounds for revocation by consular officers. A consular officer, the Secretary, or any Department official to whom the Secretary has delegated this authority is authorized to revoke an immigrant visa at any time, in his or her discretion.
(b) Provisional revocation. A consular officer, the Secretary, or any Department official to whom the Secretary has delegated this authority may provisionally revoke an immigrant visa while considering information related to whether a visa holder is eligible for the visa. Provisional revocation shall have the same force and effect as any other visa revocation under INA 221(i).
(c) Notice of revocation. Unless otherwise instructed by the Department, a consular officer shall, if practicable, notify the alien to whom the visa was issued that the visa was revoked or provisionally revoked. Regardless of delivery of such notice, once the revocation has been entered into the Department’s Consular Lookout and Support System (CLASS), the visa is no longer to be considered valid for travel to the United States. The date of the revocation shall be indicated in CLASS and on any notice sent to the alien to whom the visa was issued.
(d) Procedure for physically canceling visas. An immigrant visa that is revoked shall be canceled by writing or stamping the word “REVOKED” plainly across the face of the visa, if the visa is available to the consular officer. The failure or inability to physically cancel the visa does not affect the validity of the revocation.
§ 42.83 Termination of registration.
(a) Termination following failure of applicant to apply for visa. In accordance with INA 203(g), an alien’s registration for an immigrant visa shall be terminated if, within one year after transmission of a notification of the availability of an immigrant visa, the applicant fails to apply for an immigrant visa.
(b) Termination following visa refusal. An alien’s registration for an immigrant visa shall be terminated if, within one year following the refusal of the immigrant visa application under INA 221(g), the alien has failed to present to a consular officer evidence purporting to overcome the basis for refusal.
(c) Notice of termination. Upon the termination of registration under paragraph (a) of this section, the National Visa Center (NVC) shall notify the alien of the termination. The NVC shall also inform the alien of the right to have the registration reinstated if the alien, before the end of the second year after the missed appointment date if paragraph (a) applies, establishes to the satisfaction of the consular officer at the post where the alien is registered that the failure to apply for an immigrant visa was due to circumstances beyond the alien’s control. If paragraph (b) applies, the consular officer at the post where the alien is registered shall, upon the termination of registration, notify the alien of the termination and the right to have the registration reinstated if the alien, before the end of the second year after the INA 221(g) refusal, establishes to the satisfaction of the consular officer at such post that the failure to present evidence purporting to overcome the ineligibility under INA 221(g) was due to circumstances beyond the alien’s control.
(d) Reinstatement of registration. If the consular officer is satisfied that an alien, as provided for in paragraph (c) of this section, has established that failure to apply as scheduled for an immigrant visa or to present evidence purporting to overcome ineligibility under INA 221(g) was due to circumstances beyond the alien’s control, the consular officer shall reinstate the alien’s registration for an immigrant visa. Any petition approved under INA 204(b) which had been automatically revoked as a result of the termination of registration shall be considered to be automatically reinstated if the registration is reinstated.
(e) Interpretation of “circumstances beyond alien’s control”. For the purpose of this section, the term “circumstances beyond the alien’s control” includes, but is not limited to, an illness or other physical disability preventing the alien from traveling, a refusal by the authorities of the country of an alien’s residence to grant the alien permission to depart as an immigrant, and foreign military service.
§ 42.84 Discontinuance of granting immigrant visa pursuant to INA 243(d).
(a) Grounds for discontinuance of granting a visa. Consular officers in a country subject to an order by the Secretary under INA 243(d) shall discontinue granting immigrant visas for categories of immigrant visas specified in the order of the Secretary (or his or her designee), and pursuant to procedures dictated by the Department.
(b) Discontinuance procedure – (1) Applications refused or discontinued only. Starting on the day the Secretary’s (or designee’s) order to discontinue granting visas takes effect (effective date), no visas falling within the scope of the order, as described by the order, may be issued in the referenced country to an applicant who falls within the scope of the order, except as otherwise expressly provided in the order or related Department instructions. Beginning on the effective date, a consular officer must refuse the visa if the individual is not eligible for the visa under INA 212(a), INA 221(g), or other applicable law, but if the applicant is otherwise eligible must process the application by discontinuing granting, regardless of when the application was filed, if the applicant falls within the scope of the order and no exception applies. The application processing fee will not be refunded. The requirement to discontinue issuance may not be waived, and continues until the sanction is terminated as described below. In the case of diversity immigrant selectees applying under INA 203(c), if the discontinuance of granting has not been lifted by the end of the fiscal year, the applicant will not be eligible for a diversity visa for that fiscal year, regardless of the status of the diversity immigrant visa application at the time 243(d) sanctions were imposed.
(2) Geographic applicability. Visa sanctions under INA 243(d) only apply to visa issuance in the country that is sanctioned. If a consular officer has a reason to believe that a visa applicant potentially subject to INA 243(d) sanctions is applying at a post outside the sanctioned country to evade visa sanctions under INA 243(d), (e.g., the applicant provides no credible explanation for applying outside the country) the consular officer will transfer the case to the consular post in the consular district where INA 243(d) sanctions apply, review any other applicable Department instructions and proceed accordingly. When cases are transferred to a consular district where INA 243(d) sanctions apply, the adjudication will be subject to the discontinuation of issuance under the sanctions.
(c) Termination of sanction. The Department shall notify consular officers in an affected country the sanction under INA 243(d) has been lifted. After notification, normal consular operations may resume consistent with these regulations and guidance from the Department. Once the sanction under INA 243(d) is lifted, no new application processing fees are required in cases where issuance has been discontinued pursuant to an INA 243(d) order, and consular officers in the affected post must adjudicate the visa application consistent with regulations and Department guidance. Consular officers may require applicants to update the visa application forms, must conduct any necessary adjudicatory steps, and may re-interview to determine eligibility. In numerically controlled immigrant visa categories, an applicant’s immigrant visa priority date may no longer be current once sanctions under INA 243(d) are lifted, in which case the applicant must await visa availability.
PARTS 43-45 [RESERVED]
PART 46 – CONTROL OF ALIENS DEPARTING FROM THE UNITED STATES
§ 46.1 Definitions.
For the purposes of this part:
(a) The term alien means any person who is not a citizen or national of the United States.
(b) The term Commissioner means the Commissioner of Immigration and Naturalization.
(c) The term regional commissioner means an officer of the Immigration and Naturalization Service duly appointed or designated as a regional commissioner, or an officer who has been designated to act as a regional commissioner.
(d) The term district director means an officer of the Immigration and Naturalization Service duly appointed or designated as a district director, or an officer who has been designated to act as a district director.
(e) The term United States means the several States, the District of Columbia, the Canal Zone, Puerto Rico, the Virgin Islands, Guam, American Samoa, Swains Island, the Trust Territory of the Pacific Islands, and all other territory and waters, continental and insular, subject to the jurisdiction of the United States.
(f) The term continental United States means the District of Columbia and the several States, except Alaska and Hawaii.
(g) The term geographical part of the United States means (1) the continental United States, (2) Alaska, (3) Hawaii, (4) Puerto Rico, (5) the Virgin Islands, (6) Guam, (7) the Canal Zone, (8) American Samoa, (9) Swains Island, or (10) the Trust Territory of the Pacific Islands.
(h) The term depart from the United States means depart by land, water, or air (1) from the United States for any foreign place, or (2) from one geographical part of the United States for a separate geographical part of the United States: Provided, That a trip or journey upon a public ferry, passenger vessel sailing coastwise on a fixed schedule, excursion vessel, or aircraft, having both termini in the continental United States or in any one of the other geographical parts of the United States and not touching any territory or waters under the jurisdiction or control of a foreign power, shall not be deemed a departure from the United States.
(i) The term departure-control officer means any immigration officer as defined in the regulations of the Immigration and Naturalization Service who is designated to supervise the departure of aliens, or any officer or employee of the United States designated by the Governor of the Canal Zone, the High Commissioner of the Trust Territory of the Pacific Islands, or the governor of an outlying possession of the United States, to supervise the departure of aliens.
(j) The term port of departure means a port in the continental United States, Alaska, Guam, Hawaii, Puerto Rico or the Virgin Islands, designated as a port of entry by the Attorney General or by the Commissioner, or in exceptional circumstances such other place as the departure-control officer may, in his discretion, designate in an individual case, or a port in American Samoa, Swains Island, the Canal Zone, or the Trust Territory of the Pacific Islands, designated as a port of entry by the chief executive officer thereof.
(k) The term special inquiry officer shall have the meaning ascribed thereto in section 101(b)(4) of the Immigration and Nationality Act.
§ 46.2 Authority of departure-control officer to prevent alien’s departure from the United States.
(a) No alien shall depart, or attempt to depart, from the United States if his departure would be prejudicial to the interests of the United States under the provisions of § 46.3. Any departure-control officer who knows or has reason to believe that the case of an alien in the United States comes within the provisions of § 46.3 shall temporarily prevent the departure of such alien from the United States and shall serve him with a written temporary order directing him not to depart, or attempt to depart, from the United States until notified of the revocation of the order.
(b) The written order temporarily preventing an alien, other than an enemy alien, from departing from the United States shall become final 15 days after the date of service thereof upon the alien, unless prior thereto the alien requests a hearing as hereinafter provided. At such time as the alien is served with an order temporarily preventing his departure from the United States, he shall be notified in writing concerning the provisions of this paragraph, and shall be advised of his right to request a hearing if entitled thereto under § 46.4. In the case of an enemy alien, the written order preventing departure shall become final on the date of its service upon the alien.
(c) Any alien who seeks to depart from the United States may be required, in the discretion of the departure-control officer, to be examined under oath and to submit for official inspection all documents, articles, and other property in his possession which are being removed from the United States upon, or in connection with, the alien’s departure. The departure-control officer may permit such other persons, including officials of the Department of State and interpreters, to participate in such examination or inspection and may exclude from presence at such examination or inspection any person whose presence would not further the objectives of such examination or inspection. The departure-control officer shall temporarily prevent the departure of any alien who refuses to submit to such examination or inspection, and may, if necessary to cause the alien to submit to such examination or inspection, take possession of the alien’s passport or other travel document or issue a subpoena requiring the alien to submit to such examination or inspection.
§ 46.3 Aliens whose departure is deemed prejudicial to the interests of the United States.
The departure from the United States of any alien within one or more of the following categories shall be deemed prejudicial to the interest of the United States:
(a) Any alien who is in possession of, and who is believed likely to disclose to unauthorized persons, information concerning the plans, preparations, equipment, or establishments for the national defense and security of the United States.
(b) Any alien who seeks to depart from the United States to engage in, or who is likely to engage in, activities of any kind designed to obstruct, impede, retard, delay or counteract the effectiveness of the national defense of the United States or the measures adopted by the United States or the United Nations for the defense of any other country.
(c) Any alien who seeks to depart from the United States to engage in, or who is likely to engage in, activities which would obstruct, impede, retard, delay, or counteract the effectiveness of any plans made or action taken by any country cooperating with the United States in measures adopted to promote the peace, defense, or safety of the United States or such other country.
(d) Any alien who seeks to depart from the United States for the purpose of organizing, directing, or participating in any rebellion, insurrection, or violent uprising in or against the United States or a country allied with the United States, or of waging war against the United States or its allies, or of destroying, or depriving the United States of sources of supplies or materials vital to the national defense of the United States, or to the effectiveness of the measures adopted by the United States for its defense, or for the defense of any other country allied with the United States.
(e) Any alien who is subject to registration for training and service in the Armed Forces of the United States and who fails to present a Registration Certificate (SSS Form No. 2) showing that he has complied with his obligation to register under the Universal Military Training and Service Act, as amended.
(f) Any alien who is a fugitive from justice on account of an offense punishable in the United States.
(g) Any alien who is needed in the United States as a witness in, or as a party to, any criminal case under investigation or pending in a court in the United States: Provided, That any alien who is a witness in, or a party to, any criminal case pending in any criminal court proceeding may be permitted to depart from the United States with the consent of the appropriate prosecuting authority, unless such alien is otherwise prohibited from departing under the provisions of this part.
(h) Any alien who is needed in the United States in connection with any investigation or proceeding being, or soon to be, conducted by any official executive, legislative, or judicial agency in the United States or by any governmental committee, board, bureau, commission, or body in the United States, whether national, state, or local.
(i) Any alien whose technical or scientific training and knowledge might be utilized by an enemy or a potential enemy of the United States to undermine and defeat the military and defensive operations of the United States or of any nation cooperating with the United States in the interests of collective security.
(j) Any alien, where doubt exists whether such alien is departing or seeking to depart from the United States voluntarily except an alien who is departing or seeking to depart subject to an order issued in extradition, exclusion, or deportation proceedings.
(k) Any alien whose case does not fall within any of the categories described in paragraphs (a) to (j), inclusive, of this section, but which involves circumstances of a similar character rendering the alien’s departure prejudicial to the interests of the United States.
§ 46.4 Procedure in case of alien prevented from departing from the United States.
(a) Any alien, other than an enemy alien, whose departure has been temporarily prevented under the provisions of § 46.2 may, within 15 days of the service upon him of the written order temporarily preventing his departure, request a hearing before a special inquiry officer. The alien’s request for a hearing shall be made in writing and shall be addressed to the district director having administrative jurisdiction over the alien’s place of residence. If the alien’s request for a hearing is timely made, the district director shall schedule a hearing before a special inquiry officer, and notice of such hearing shall be given to the alien. The notice of hearing shall, as specifically as security considerations permit, inform the alien of the nature of the case against him, shall fix the time and place of the hearing, and shall inform the alien of his right to be represented, at no expense to the Government, by counsel of his own choosing.
(b) Every alien for whom a hearing has been scheduled under paragraph (a) of this section shall be entitled (1) to appear in person before the special inquiry officer, (2) to be represented by counsel of his own choice, (3) to have the opportunity to be heard and to present evidence, (4) to cross-examine the witnesses who appear at the hearing, except that if, in the course of the examination, it appears that further examination may divulge information of a confidential or security nature, the special inquiry officer may, in his discretion, preclude further examination of the witness with respect to such matters, (5) to examine any evidence in possession of the Government which is to be considered in the disposition of the case, provided that such evidence is not of a confidential or security nature the disclosure of which would be prejudicial to the interests of the United States, (6) to have the time and opportunity to produce evidence and witnesses on his own behalf, and (7) to reasonable continuances upon request, for good cause shown.
(c) Any special inquiry officer who is assigned to conduct the hearing provided for in this section shall have the authority to: (1) Administer oaths and affirmations, (2) present and receive evidence, (3) interrogate, examine, and cross-examine under oath or affirmation both the alien and witnesses, (4) rule upon all objections to the introduction of evidence or motions made during the course of the hearing, (5) take or cause depositions to be taken, (6) issue subpoenas, and (7) take any further action consistent with applicable provisions of law, executive orders, proclamations, and regulations.
§ 46.5 Hearing procedure before special inquiry officer.
(a) The hearing before the special inquiry officer shall be conducted in accordance with the following procedure:
(1) The special inquiry officer shall advise the alien of the rights and privileges accorded him under the provisions of § 46.4.
(2) The special inquiry officer shall enter of record (i) a copy of the order served upon the alien temporarily preventing his departure from the United States, and (ii) a copy of the notice of hearing furnished the alien.
(3) The alien shall be interrogated by the special inquiry officer as to the matters considered pertinent to the proceeding, with opportunity reserved to the alien to testify thereafter in his own behalf, if he so chooses.
(4) The special inquiry officer shall present on behalf of the Government such evidence, including the testimony of witnesses and the certificates or written statements of Government officials or other persons, as may be necessary and available. In the event such certificates or statements are received in evidence, the alien may request and, in the discretion of the special inquiry officer, be given an opportunity to interrogate such officials or persons, by deposition or otherwise, at a time and place and in a manner fixed by the special inquiry officer: Provided, That when in the judgment of the special inquiry officer any evidence relative to the disposition of the case is of a confidential or security nature the disclosure of which would be prejudicial to the interests of the United States, such evidence shall not be presented at the hearing but shall be taken into consideration in arriving at a decision in the case.
(5) The alien may present such additional evidence, including the testimony of witnesses, as is pertinent and available.
(b) A complete verbatim transcript of the hearing, except statements made off the record, shall be recorded. The alien shall be entitled, upon request, to the loan of a copy of the transcript, without cost, subject to reasonable conditions governing its use.
(c) Following the completion of the hearing, the special inquiry officer shall make and render a recommended decision in the case, which shall be governed by and based upon the evidence presented at the hearing and any evidence of a confidential or security nature which the Government may have in its possession. The decision of the special inquiry officer shall recommend (1) that the temporary order preventing the departure of the alien from the United States be made final, or (2) that the temporary order preventing the departure of the alien from the United States be revoked. This recommended decision of the special inquiry officer shall be made in writing and shall set forth the officer’s reasons for such decision. The alien concerned shall at his request be furnished a copy of the recommended decision of the special inquiry officer, and shall be allowed a reasonable time, not to exceed 10 days, in which to submit representations with respect thereto in writing.
(d) As soon as practicable after the completion of the hearing and the rendering of a decision by the special inquiry officer, the district director shall forward the entire record of the case, including the recommended decision of the special inquiry officer and any written representations submitted by the alien, to the regional commissioner having jurisdiction over his district. After reviewing the record, the regional commissioner shall render a decision in the case, which shall be based upon the evidence in the record and on any evidence or information of a confidential or security nature which he deems pertinent. Whenever any decision is based in whole or in part on confidential or security information not included in the record, the decision shall state that such information was considered. A copy of the regional commissioner’s decision shall be furnished the alien, or his attorney or representative. No administrative appeal shall lie from the regional commissioner’s decision.
(e) Notwithstanding any other provision of this part, the Administrator of the Bureau of Security and Consular Affairs referred to in section 104(b) of the Immigration and Nationality Act, or such other officers of the Department of State as he may designate, after consultation with the Commissioner, or such other officers of the Immigration and Naturalization Service as he may designate, may at any time permit the departure of an individual alien or of a group of aliens from the United States if he determines that such action would be in the national interest. If the Administrator specifically requests the Commissioner to prevent the departure of a particular alien or of a group of aliens, the Commissioner shall not permit the departure of such alien or aliens until he has consulted with the Administrator.
(f) In any case arising under §§ 46.1 to 46.7, the Administrator shall, at his request, be kept advised, in as much detail as he may indicate is necessary, of the facts and of any action taken or proposed.
§ 46.6 Departure from the Canal Zone, the Trust Territory of the Pacific Islands, or outlying possessions of the United States.
(a) In addition to the restrictions and prohibitions imposed by the provisions of this part upon the departure of aliens from the United States, any alien who seeks to depart from the Canal Zone, the Trust Territory of the Pacific Islands, or an outlying possession of the United States shall comply with such other restrictions and prohibitions as may be imposed by regulations prescribed, with the concurrence of the Administrator of the Bureau of Security and Consular Affairs and the Commissioner, by the Governor of the Canal Zone, the High Commissioner of the Trust Territory of the Pacific Islands, or by the governor of an outlying possession of the United States, respectively. No alien shall be prevented from departing from such zone, territory, or possession without first being accorded a hearing as provided in §§ 46.4 and 46.5.
(b) The Governor of the Canal Zone, the High Commissioner of the Trust Territory of the Pacific Islands, or the governor of any outlying possession of the United States shall have the authority to designate any employee or class of employees of the United States as hearing officers for the purpose of conducting the hearing referred to in paragraph (a) of this section. The hearing officer so designated shall exercise the same powers, duties, and functions as are conferred upon special inquiry officers under the provisions of this part. The chief executive officer of such zone, territory, or possession shall, in lieu of the regional commissioner, review the recommended decision of the hearing officer, and shall render a decision in any case referred to him, basing it on evidence in the record and on any evidence or information of a confidential or a security nature which he deems pertinent.
§ 46.7 Instructions from the Administrator required in certain cases.
In the absence of appropriate instructions from the Administrator of the Bureau of Security and Consular Affairs, departure-control officers shall not exercise the authority conferred by § 46.2 in the case of any alien who seeks to depart from the United States in the status of a nonimmigrant under section 101(a)(15) (A) or (G) of the Immigration and Nationality Act, or in the status of a nonimmigrant under section 11(3), 11 (4), or 11(5) of the Agreement between the United Nations and the United States of America regarding the Headquarters of the United Nations (61 Stat. 756): Provided, That in cases of extreme urgency, where the national security so requires, a departure-control officer may preliminarily exercise the authority conferred by § 46.2 pending the outcome of consultation with the Administrator, which shall be undertaken immediately. In all cases arising under this section, the decision of the Administrator shall be controlling: Provided, That any decision to prevent the departure of an alien shall be based upon a hearing and record as prescribed in this part.
PART 47 [RESERVED]
SUBCHAPTER F – NATIONALITY AND PASSPORTS
PART 50 – NATIONALITY PROCEDURES
§ 50.1 Definitions.
The following definitions shall be applicable to this part:
(a) United States means the continental United States, the State of Hawaii, the Commonwealth of Puerto Rico, the Virgin Islands of the United States, the Canal Zone, American Samoa, Guam and any other islands or territory over which the United States exercises jurisdiction.
(b) Department means the Department of State of the United States of America.
(c) Secretary means the Secretary of State.
(d) National means a citizen of the United States or a noncitizen owing permanent allegiance to the United States.
(e) Passport means a travel document issued under the authority of the Secretary of State attesting to the identity and nationality of the bearer.
(f) Passport Agent means a person designated by the Department to accept passport applications.
(g) Designated nationality examiner means a United States citizen employee of the Department of State assigned or employed abroad (permanently or temporarily) and designated by the Deputy Assistant Secretary of State for Overseas Citizen Services, to grant, issue and verify U.S. passports. A designated nationality examiner may adjudicate claims of acquisition and loss of United States nationality and citizenship as required for the purpose of providing passport and related services. The authority of designated nationality examiners shall include the authority to examine, adjudicate, approve and deny passport applications and applications for related services. The authority of designated nationality examiners shall expire upon termination of the employee’s assignment for such duty and may also be terminated at any time by the Deputy Assistant Secretary for Overseas Citizen Services.
Subpart A – Procedures for Determination of United States Nationality of a Person Abroad
§ 50.2 Determination of U.S. nationality of persons abroad.
The Department shall determine claims to United States nationality when made by persons abroad on the basis of an application for registration, for a passport, or for a Consular Report of Birth Abroad of a Citizen of the United States of America. Such determinations of nationality may be made abroad by a consular officer or a designated nationality examiner. A designated nationality examiner may accept and approve/disapprove applications for registration and accept and approve/disapprove applications for passports and issue passports. Under the supervision of a consular officer, designated nationality examiners shall accept, adjudicate, disapprove and provisionally approve applications for the Consular Report of Birth Abroad. A Consular Report of Birth Abroad may only be issued by a consular officer, who will review a designated nationality examiner’s provisional approval of an application for such report and issue the report if satisfied that the claim to nationality has been established.
§ 50.3 Application for registration.
(a) A person abroad who claims U.S. nationality, or a representative on his behalf, may apply at a consular post for registration to establish his claim to U.S. nationality or to make his residence in the particular consular area a matter of record.
(b) The applicant shall execute the registration form prescribed by the Department and shall submit the supporting evidence required by subpart C of part 51 of this chapter. A diplomatic or consular officer or a designated nationality examiner shall determine the period of time for which the registration will be valid.
§ 50.4 Application for passport.
A claim to U.S. nationality in connection with an application for passport shall be determined by posts abroad in accordance with the regulations contained in part 51 of this chapter.
§ 50.5 Application for registration of birth abroad.
Upon application by the parent(s) or the child’s legal guardian, a consular officer or designated nationality examiner may accept and adjudicate the application for a Consular Report of Birth Abroad of a Citizen of the United States of America for a child born in their consular district. In specific instances, the Department may authorize consular officers and other designated employees to adjudicate the application for a Consular Report of Birth Abroad of a child born outside his/her consular district. Under the supervision of a consular officer, designated nationality examiners shall accept, adjudicate, disapprove and provisionally approve applications for the Consular Report of Birth Abroad. The applicant shall be required to submit proof of the child’s birth, identity and citizenship meeting the evidence requirements of subpart C of part 51 of this subchapter and shall include:
(a) Proof of child’s birth. Proof of child’s birth usually consists of, but is not limited to, an authentic copy of the record of the birth filed with local authorities, a baptismal certificate, a military hospital certificate of birth, or an affidavit of the doctor or the person attending the birth. If no proof of birth is available, the person seeking to register the birth shall submit his affidavit explaining why such proof is not available and setting forth the facts relating to the birth.
(b) Proof of child’s citizenship. Evidence of parent’s citizenship and, if pertinent, evidence of parent’s physical presence in the United States as required for transmittal of claim of citizenship by the Immigration and Nationality Act of 1952 shall be submitted.
§ 50.6 Registration at the Department of birth abroad.
In the time of war or national emergency, passport agents may be designated to complete consular reports of birth for children born at military facilities which are not under the jurisdiction of a consular office. An officer of the Armed Forces having authority to administer oaths may take applications for registration under this section.
§ 50.7 Consular Report of Birth Abroad of a Citizen of the United States of America.
(a) Upon application and the submission of satisfactory proof of birth, identity and nationality, and at the time of the reporting of the birth, the consular officer may issue to the parent or legal guardian, when approved and upon payment of a prescribed fee, a Consular Report of Birth Abroad of a Citizen of the United States of America.
(b) Amended and replacement Consular Reports of Birth Abroad of a Citizen of the United States of America may be issued by the Department of State’s Passport Office upon written request and payment of the required fee.
(c) When it reports a birth under § 50.6, the Department shall furnish the Consular Report of Birth Abroad of a Citizen of the United States of America to the parent or legal guardian upon application and payment of required fees.
(d) A Consular Report of Birth Abroad may be cancelled in accordance with applicable provisions in 22 CFR 51.60 through 51.74.
§ 50.8 Certification of Report of Birth Abroad of a United States Citizen.
At any time subsequent to the issuance of a Consular Report of Birth Abroad of a Citizen of the United States of America, when requested and upon payment of the required fee, the Department of State’s Passport Office may issue to the citizen, the citizen’s parent or legal guardian a certificate entitled “Certification of Report of Birth Abroad of a United States Citizen.”
§ 50.9 Card of identity.
When authorized by the Department, consular offices or designated nationality examiners may issue a card of identity for travel to the United States to nationals of the United States being deported from a foreign country, to nationals/citizens of the United States involved in a common disaster abroad, or to a returning national of the United States to whom passport services have been denied or withdrawn under the provisions of this part or parts 51 or 53 of this subchapter.
§ 50.10 Certificate of nationality.
(a) Any person who acquired the nationality of the United States at birth and who is involved in any judicial or administrative proceedings in a foreign state and needs to establish his U.S. nationality may apply for a certificate of nationality in the form prescribed by the Department.
(b) An applicant for a certificate of nationality must submit evidence of his nationality and documentary evidence establishing that he is involved in judicial or administrative proceedings in which proof of his U.S. nationality is required.
§ 50.11 Certificate of identity for travel to the United States to apply for admission.
(a) A person applying abroad for a certificate of identity under section 360(b) of the Immigration and Nationality Act shall complete the application form prescribed by the Department and submit evidence to support his claim to U.S. nationality.
(b) When a diplomatic or consular officer denies an application for a certificate of identity under this section, the applicant may submit a written appeal to the Secretary through the U.S. embassy or consulate where the individual applied for the certificate of identity, stating the pertinent facts, the grounds upon which U.S. nationality is claimed, and his or her reasons for considering that the denial was not justified.
Subpart B – Retention and Resumption of Nationality
§ 50.20 Retention of nationality.
(a) Section 351(b) of the Immigration and Nationality Act. (1) A person who desires to claim U.S. nationality under the provisions of section 351(b) of the Immigration and Nationality Act must, within the time period specified in the statute, assert a claim to U.S. nationality and subscribe to an oath of allegiance before a diplomatic or consular officer.
(2) In addition, the person shall submit to the Department a statement reciting the person’s identity and acquisition or derivation of U.S. nationality, the facts pertaining to the performance of any act which would otherwise have been expatriative, and his desire to retain his U.S. nationality.
§ 50.30 Resumption of nationality.
(a) Section 324(c) of the Immigration and Nationality Act. (1) A woman formerly a citizen of the United States at birth who wishes to regain her citizenship under section 324(c) of the Immigration and Nationality Act may apply abroad to a diplomatic or consular officer on the form prescribed by the Department to take the oath of allegiance prescribed by section 337 of that Act.
(2) The applicant shall submit documentary evidence to establish her eligibility to take the oath of allegiance. If the diplomatic or consular officer or the Department determines, when the application is submitted to the Department for decision, that the applicant is ineligible for resumption of citizenship because of section 313 of the Immigration and Nationality Act, the oath shall not be administered.
(b) The Act of June 25, 1936. (1) A woman who has been restored to citizenship by the Act of June 25, 1936, as amended by the Act of July 2, 1940, but who failed to take the oath of allegiance prior to December 24, 1952, as prescribed by the nationality laws, may apply abroad to any diplomatic or consular officer to take the oath of allegiance as prescribed by section 337 of the Immigration and Nationality Act.
(2) The applicant shall submit documentary evidence to establish her eligibility to take the oath of allegiance. If the diplomatic or consular officer or the Department determines, when the application is submitted to the Department, that the applicant is ineligible for resumption of citizenship under section 313 of the Immigration and Nationality Act, the oath shall not be administered.
(c) Certification of repatriation. Upon request and payment of the prescribed fee, a diplomatic or consular officer or the Department shall issue a certified copy of the application and oath administered to a woman repatriated under this section.
(d) Section 324(d)(1) of the Immigration and Nationality Act. (1) A former citizen of the United States who did not retain U.S. citizenship by failure to fulfill residency requirements as set out in Section 201(g) of the 1940 Nationality Act or former 301(b) of the 1952 Immigration and Nationality Act, may regain his/her U.S. citizenship pursuant to Section 324(d) INA, by applying abroad at a diplomatic or consular post, or in the U.S. at any Immigration and Naturalization Service office in the form and manner prescribed by the Department of State and the Immigration and Naturalization Service (INS).
(2) The applicant shall submit documentary evidence to establish eligibility to take the oath of allegiance, which includes proof of birth abroad to a U.S. citizen parent between May 24, 1934 and December 24, 1952. If the diplomatic, consular, INS, or passport officer determines that the applicant is ineligible to regain citizenship under section 313 INA, the oath shall not be administered.
Subpart C – Loss of Nationality
§ 50.40 Certification of loss of U.S. nationality.
(a) Administrative presumption. In adjudicating potentially expatriating acts pursuant to INA 349(a), the Department has adopted an administrative presumption regarding certain acts and the intent to commit them. U.S. citizens who naturalize in a foreign country; take a routine oath of allegiance; or accept non-policy level employment with a foreign government need not submit evidence of intent to retain U.S. nationality. In these three classes of cases, intent to retain U.S. citizenship will be presumed. A person who affirmatively asserts to a consular officer, after he or she has committed a potentially expatriating act, that it was his or her intent to relinquish U.S. citizenship will lose his or her U.S. citizenship. In other loss of nationality cases, the consular officer will ascertain whether or not there is evidence of intent to relinquish U.S. nationality.
(b) Whenever a person admits that he or she had the intent to relinquish citizenship by the voluntary and intentional performance of one of the acts specified in Section 349(a) of the Immigration and Nationality Act, and the person consents to the execution of an affidavit to that effect, the diplomatic or consular officer shall attach such affidavit to the certificate of loss of nationality.
(c) Whenever a diplomatic or consular officer has reason to believe that a person, while in a foreign country, has lost his U.S. nationality under any provision of chapter 3 of title III of the Immigration and Nationality Act of 1952, or under any provision of chapter IV of the Nationality Act of 1940, as amended, he shall prepare a certificate of loss of nationality containing the facts upon which such belief is based and shall forward the certificate to the Department.
(d) If the diplomatic or consular officer determines that any document containing information relevant to the statements in the certificate of loss of nationality should not be attached to the certificate, the person may summarize the pertinent information in the appropriate section of the certificate and send the documents together with the certificate to the Department.
(e) If the certificate of loss of nationality is approved by the Department, a copy shall be forwarded to the Immigration and Naturalization Service, Department of Justice. The diplomatic or consular office in which the certificate was prepared shall then forward a copy of the certificate to the person to whom it relates or his representative.
§ 50.50 Renunciation of nationality.
(a) A person desiring to renounce U.S. nationality under section 349(a)(5) of the Immigration and Nationality Act shall appear before a diplomatic or consular officer of the United States in the manner and form prescribed by the Department. The renunciant must include on the form he signs a statement that he absolutely and entirely renounces his U.S. nationality together with all rights and privileges and all duties of allegiance and fidelity thereunto pertaining.
(b) The diplomatic or consular officer shall forward to the Department for approval the oath of renunciation together with a certificate of loss of nationality as provided by section 358 of the Immigration and Nationality Act. If the officer’s report is approved by the Department, copies of the certificate shall be forwarded to the Immigration and Naturalization Service, Department of Justice, and to the person to whom it relates or his representative.
§ 50.51 Review of finding of loss of nationality.
(a) There are no prescribed “procedures for administrative appeal” of issuance of a Certificate of Loss of Nationality for purposes of § 358 of the Immigration and Nationality Act (8 U.S.C. 1501) and no mandatory administrative review procedure prior to resort to judicial processes under § 360 of the Immigration and Nationality Act (8 U.S.C. 1503). Nevertheless, the Department may in its discretion review determinations of loss of nationality at any time after approval of issuance of the Certificate of Loss of Nationality to ensure consistency with governing law (see INA §§ 349 and 356, 8 U.S.C. 1481 and 1488). Such reconsideration may be initiated at the request of the person concerned or another person determined in accordance with guidance issued by the Department to have a legitimate interest.
(b) The primary grounds on which the Department will consider reversing a finding of loss of nationality and vacating a Certificate of Loss of Nationality are:
(1) The law under which the finding of loss was made has been held unconstitutional; or
(2) A major change in the interpretation of the law of expatriation is made as a result of a U.S. Supreme Court decision; or
(3) A major change in the interpretation of the law of expatriation is made by the Department, or is made by a court or another agency and adopted by the Department; and/or
(4) The person presents substantial new evidence, not previously considered, of involuntariness or absence of intent at the time of the expatriating act.
(c) When the Department reverses a finding of loss of nationality, the person concerned shall be considered not to have lost U.S. nationality as of the time the expatriating act was committed, and the Certificate of Loss of Nationality shall be vacated.
(d) Requesting the Department to reverse a finding of loss of nationality and vacate a Certificate of Loss of Nationality is not a prescribed “procedure for administrative appeal” for purposes of § 358 of the Immigration and Nationality Act (8 U.S.C. 1501). The Department’s decision in response to such a request is not a prescribed “procedure for administrative appeal” for purposes of § 358 of the Immigration and Nationality Act (8 U.S.C. 1501). The issuance of a Certificate of Loss of Nationality by the Department is a “final administrative determination” and “final administrative denial” for purposes of §§ 358 and 360 of the Immigration and Nationality Act (8 U.S.C. 1501 and 1503), respectively.
PART 51 – PASSPORTS
§ 51.1 Definitions.
The following definitions are applicable to this part:
Department means the United States Department of State.
Electronic passport means a passport containing an electronically readable device, an electronic chip encoded with the bearer’s personal information printed on the data page, a digitized version of the bearer’s photograph, a unique chip number, and a digital signature to protect the integrity of the stored information.
Minor means an unmarried, unemancipated person under 18 years of age.
Non-personal services contractor, for purposes of this part, is an individual working under a non-personal services contract as defined in 48 CFR 37.101.
Passport means a travel document regardless of format issued under the authority of the Secretary of State attesting to the identity and nationality of the bearer.
Passport acceptance agent means a U.S. national designated by the Department to accept passport applications and to administer oaths and affirmations in connection with such applications.
Passport agent means a U.S. citizen employee of the Department of State, including consular officers, diplomatic officers and consular agents abroad, and such U.S. citizen Department of State employees or contractors as the Assistant Secretary for Consular Affairs may designate for the purpose of administering oaths and affirmations for passport applications.
Passport application means the application form for a United States passport, as prescribed by the Department pursuant to 22 U.S.C. 213 and all documents, photographs, and statements submitted with the form or thereafter in support of the application.
Passport authorizing officer means a U.S. citizen employee who is authorized by the Department to approve the issuance of passports.
Personal services contractor, for purposes of this part, means a contractor who is working under a personal services contract as described in 48 CFR 37.104.
Secretary means the Secretary of State.
Special issuance passport means a regular passport for which no passport fee is collected pursuant to § 51.52, and a service, official or diplomatic passport as defined in § 51.3.
United States when used in a geographical sense means the continental United States, Alaska, Hawaii, Puerto Rico, Guam, the Virgin Islands of the United States, and all other United States territories and possessions.
U.S. citizen means a person who acquired U.S. citizenship at birth or upon naturalization as provided by law and who has not subsequently lost such citizenship.
U.S. national means a U.S. citizen or a U.S. non-citizen national.
U.S. non-citizen national means a person on whom U.S. nationality, but not U.S. citizenship, has been conferred at birth under 8 U.S.C. 1408, or under other law or treaty, and who has not subsequently lost such non-citizen nationality.
Subpart A – General
§ 51.2 Passport issued to nationals only.
(a) A passport may be issued only to a U.S. national.
(b) Unless authorized by the Department, no person may bear more than one valid passport of the same type.
§ 51.3 Types of passports.
(a) Regular passport. A regular passport is issued to a national of the United States.
(b) Service passport. When authorized by the Department, a service passport may be issued to a non-personal services contractor traveling abroad to carry out duties in support of and pursuant to a contract with the U.S. government, when exceptional circumstances make a service passport necessary to enable the individual to carry out his or her contractual duties.
(c) Official passport. When authorized by the Department, an official passport may be issued to:
(1) An officer or employee of the U.S. government traveling abroad to carry out official duties, and family members of such persons;
(2) A U.S. government personal services contractor traveling abroad to carry out official duties on behalf of the U.S. government;
(3) A non-personal services contractor traveling abroad to carry out duties in support of and pursuant to a contract with the U.S. government when the contractor is unable to carry out such duties using a regular or service passport; or
(4) An official or employee of a state, local, tribal, or territorial government traveling abroad to carry out official duties in support of the U.S. government.
(d) Diplomatic passport. A diplomatic passport is issued to a Foreign Service Officer or to a person having diplomatic status or comparable status because he or she is traveling abroad to carry out diplomatic duties on behalf of the U.S. government. When authorized by the Department, spouses and family members of such persons may be issued diplomatic passports. When authorized by the Department, a diplomatic passport may be issued to a U.S. government contractor if the contractor meets the eligibility requirements for a diplomatic passport and the diplomatic passport is necessary to complete his or her contractual duties in support of the U.S. government.
(e) Passport card. A passport card is issued to a national of the United States on the same basis as a regular passport. It is valid only for departure from and entry to the United States through land and sea ports of entry between the United States and Mexico, Canada, the Caribbean and Bermuda. It is not a globally interoperable international travel document.
§ 51.4 Validity of passports.
(a) Signature of bearer. A passport book is valid only when signed by the bearer in the space designated for signature, or, if the bearer is unable to sign, signed by a person with legal authority to sign on his or her behalf. A passport card is valid without the signature of the bearer.
(b) Period of validity of a regular passport and a passport card. (1) A regular passport or passport card issued to an applicant 16 years of age or older is valid for ten years from date of issue unless the Department limits the validity period to a shorter period.
(2) A regular passport or passport card issued to an applicant under 16 years of age is valid for five years from date of issue unless the Department limits the validity period to a shorter period.
(3) A regular passport for which payment of the fee has been excused is valid for a period of five years from the date issued unless limited by the Department to a shorter period.
(c) Period of validity of a service passport. The period of validity of a service passport, unless limited by the Department to a shorter period, is five years from the date of issue, or so long as the bearer maintains the status pursuant to which the service passport is issued, whichever is shorter. A service passport which has not expired must be returned to the Department upon the termination of the bearer’s status or at such other time as the Department may determine.
(d) Period of validity of an official passport. The period of validity of an official passport, unless limited by the Department to a shorter period, is five years from the date of issue, or so long as the bearer maintains his or her official status, whichever is shorter. An official passport which has not expired must be returned to the Department upon the termination of the bearer’s official status or at such other time as the Department may determine.
(e) Period of validity of a diplomatic passport. The period of validity of a diplomatic passport, unless limited by the Department to a shorter period, is five years from the date of issue, or so long as the bearer maintains his or her diplomatic status, whichever is shorter. A diplomatic passport which has not expired must be returned to the Department upon the termination of the bearer’s diplomatic status or at such other time as the Department may determine.
(f) Limitation of validity. The validity period of any passport may be limited by the Department to less than the normal validity period. The bearer of a limited passport may apply for a new passport, using the proper application and submitting the limited passport, applicable fees, photographs, and additional documentation, if required, to support the issuance of a new passport.
(g) Invalidity. A United States passport is invalid as soon as:
(1) The Department approves the revocation notification pursuant to § 51.65(a); or
(2) The passport has been reported as lost or stolen to the Department, a U.S. passport agency or a diplomatic or consular post abroad and the Department has recorded the reported loss or theft; or
(3) The passport is cancelled by the Department (physically, electronically, or otherwise) upon issuance of a new passport of the same type to the bearer; or
(4) The Department has sent a written notice to the bearer that the passport has been invalidated because the Department has not received the applicable fees; or
(5) The passport has been materially changed in physical appearance or composition, or contains a damaged, defective or otherwise nonfunctioning chip, or includes unauthorized changes, obliterations, entries or photographs, or has observable wear or tear that renders it unfit for use as a travel document, and the Department either takes possession of the passport or sends a written notice to the bearer); or
(6) The bearer of a special issuance passport no longer maintains the status pursuant to which the passport was issued; or
(7) The Department has sent a written notice to the bearer, directly or through the bearer’s employing agency, stating that a special issuance passport has been cancelled by the Department.
(8) The Department approves a Certificate of Loss of Nationality for the passport holder pursuant to § 50.40 of this chapter and 8 U.S.C. 1481.
§ 51.5 Adjudication and issuance of passports.
(a) A passport authorizing officer may adjudicate applications and authorize the issuance of passports.
(b) A passport authorizing officer will examine the passport application and all documents, photographs and statements submitted in support of the application in accordance with guidance issued by the Department.
§ 51.6 Verification of passports and release of information from passport records.
(a) Verification. When required by a foreign government, a consular officer abroad may verify a U.S. passport.
(b) Release of information. Information in passport records is subject to the provisions of the Freedom of Information Act (FOIA) and the Privacy Act. Release of this information may be requested in accordance with part 171 or part 172 of this title.
§ 51.7 Passport property of the U.S. Government.
(a) A passport at all times remains the property of the United States and must be returned to the U.S. Government upon demand.
(b) Law enforcement authorities who take possession of a passport for use in an investigation or prosecution must return the passport to the Department on completion of the investigation and/or prosecution.
§ 51.8 Submission of currently valid passport.
(a) When applying for a new passport in person or by mail, an applicant must submit for cancellation any currently valid passport of the same type.
(b) When applying for a new passport on-line, an applicant must have the currently valid passport of the same type available for cancellation via the on-line process.
(c) If an applicant is unable to produce a passport under paragraph (a) or (b) of this section, they must submit a signed statement in the form prescribed by the Department setting forth the circumstances regarding the disposition of the passport.
(d) The Department may deny or limit a passport if the applicant has failed to provide a sufficient and credible explanation for lost, stolen, altered or mutilated passport(s) previously issued to the applicant, after being given a reasonable opportunity to do so.
§ 51.9 Amendment of passports.
Except for the convenience of the U.S. Government, no passport may be amended.
§ 51.10 Replacement passports.
A passport issuing office may issue a replacement passport without payment of applicable fees for the reasons specified in § 51.54.
Subpart B – Application
§ 51.20 General.
(a) An application for a passport, a replacement passport, or other passport related service must be completed using the forms the Department prescribes.
(b) The passport applicant must truthfully answer all questions and must state every material matter of fact pertaining to his or her eligibility for a passport. All information and evidence submitted in connection with an application is considered part of the application. A person providing false information as part of a passport application, whether contemporaneously with the form or at any other time, is subject to prosecution under applicable Federal criminal statutes.
§ 51.21 Execution of passport application.
(a) Application by personal appearance. Except as provided in § 51.28, to assist in establishing identity, a minor, a person who has never been issued a passport in his or her own name, a person who has not been issued a passport for the full validity period of 10 years in his or her own name within 15 years of the date of a new application, or a person who is otherwise not eligible to apply for a passport by mail under paragraphs (b) and (c) of this section, must apply for a passport by appearing in person before a passport agent or passport acceptance agent (see § 51.22). The applicant must verify the application by oath or affirmation before the passport agent or passport acceptance agent, sign the completed application, provide photographs as prescribed by the Department, provide any other information or documents requested and pay the applicable fees prescribed in the Schedule of Fees for Consular Services (see 22 CFR 22.1).
(b) Application by mail or on-line – persons in the United States. (1) A person in the United States who previously has been issued a passport valid for 10 years in his or her own name may apply for a new passport by filling out, signing and mailing an application on the form prescribed by the Department if:
(i) The most recently issued previous passport was issued when the applicant was 16 years of age or older;
(ii) The application is made not more than 15 years following the issue date of the previous passport, except as provided in paragraph (e) of this section; and
(iii) The most recently issued previous passport of the same type is submitted with the new application.
(2) A person in the United States who previously has been issued a passport valid for 10 years in their own name may apply for a new passport by filling out, signing, and submitting an on-line application via the Department’s official website if:
(i) The applicant’s most recently issued passport was issued when the applicant was 16 years of age or older, and has one year or less of validity remaining;
(ii) The application is made not more than 15 years following the issue date of the most recently issued passport of the same type;
(iii) The most recently-issued passport of the same type is available for verification via the on-line process.
(3) The applicant must also provide photographs as prescribed by the Department and pay the applicable fees prescribed in the Schedule of Fees for Consular Services (22 CFR 22.1).
(c) Application by mail – persons abroad. (1) A person in a foreign country where the Department has authorized a post to receive passport applications by mail who previously has been issued a passport valid for 10 years in his or her own name may apply for a new passport in that country by filling out, signing and mailing an application on the form prescribed by the Department if:
(i) The most recently issued previous passport was issued when the applicant was 16 years of age or older;
(ii) The application is made not more than 15 years following the issue date of the previous passport, except as provided in paragraph (e) of this section; and
(iii) The most recently issued previous passport of the same type is submitted with the new application.
(2) The applicant must also provide photographs as prescribed by the Department and pay the applicable fees prescribed in the Schedule of Fees for Consular Services (22 CFR 22.1).
(d) Nothing in this part shall prohibit or limit the Department from authorizing an overseas post to accept a passport application or applications from persons outside the country or outside the person’s country of residence in circumstances which prevent provision of these services to the person where they are located or in other unusual circumstances as determined by the Department.
(e) A senior passport authorizing officer may authorize acceptance of an application by mail where the application is made more than 15 years following the issue date of the previous passport as appropriate and in accordance with guidance issued by the Department.
§ 51.22 Passport agents and passport acceptance agents.
(a) U.S. citizen employees of the Department authorized to serve as passport agents. The following employees of the Department are authorized by virtue of their positions to serve as passport agents unless the Department in an individual case withdraws authorization:
(1) A passport authorizing officer;
(2) A consular officer, or a U.S. citizen consular agent abroad;
(3) A diplomatic officer specifically authorized by the Department to accept passport applications; and
(4) Such U.S. citizen Department of State employees and contractors as the Assistant Secretary for Consular Affairs may designate for the purpose of administering oaths and affirmations for passport applications.
(b) Persons designated by the Department to serve as passport acceptance agents. When designated by the Department, the following persons are authorized to serve as passport acceptance agents unless the Department in an individual case withdraws authorization.
(1) An employee of the clerk of any Federal court;
(2) An employee of the clerk of any state court of record;
(3) A postal employee at a United States post office that has been selected to accept passport applications;
(4) An employee of the Department of Defense at a military installation that has been authorized to accept passport applications;
(5) An employee of a federal agency that has been selected to accept passport applications; and
(6) Any other person specifically designated by the Department.
(c) Qualifications of persons designated by the Department to serve as passport acceptance agents. Before the Department will designate a person described in § 51.22(b) as a passport acceptance agent, his or her employer must certify that the person:
(1) Is a U.S. citizen or a U.S. non-citizen national;
(2) Is 18 years of age or older;
(3) Is a permanent employee, excluding ad hoc, contractual, and volunteer employees; and
(4) Does not have a record of either:
(i) A Federal or State felony conviction; or
(ii) A misdemeanor conviction for crimes involving moral turpitude or breach of trust, including but not limited to embezzlement, identity theft, misappropriation, document fraud, drug offenses, or dishonesty in carrying out a responsibility involving public trust.
(d) Training. A passport acceptance agent described in § 51.22(b) must be trained to apply procedures and practices as detailed in guidance provided by the Department. Training must be successfully completed before accepting passport applications.
(e) Responsibilities. The responsibilities of a passport acceptance agent described in § 51.22(b) include but are not limited to the following:
(1) Certifying the identity of each applicant. Passport acceptance agents must certify that they have personally witnessed the applicant signing his or her application, and that the applicant has:
(i) Personally appeared;
(ii) Presented proper identification, as documented on the application;
(iii) Submitted photographs that are a true likeness; and
(iv) Taken the oath administered by the acceptance agent.
(2) Safeguarding passport application information under the Privacy
Act of 1974. Passport acceptance agents described in § 51.22(b) must not retain copies of executed applications, nor release passport application information to anyone other than the applicant and the Department.
(3) Avoiding conflict of interest. Passport acceptance agents described in § 51.22(b) must not participate in any relationship that could be perceived as a conflict of interest, including but not limited to providing commercial services related to the passport process.
(f) Documentation. Passport acceptance facilities within the United
States must maintain a current listing of all passport acceptance agents designated under § 51.22(b) working at its facility. This list must be updated at least annually and a copy provided to the officer specified by the Department at the appropriate passport issuing office.
(1) The current listing of all designated passport acceptance agents must include the passport acceptance agents’:
(i) Names; and
(ii) Signatures.
(2) Any addition to or deletion from the current listing of designated passport acceptance agents is subject to prior approval by the Department.
§ 51.23 Identity of applicant.
(a) The applicant has the burden of establishing his or her identity.
(b) The applicant must establish his or her identity by the submission of a previous passport, other state, local, or federal government officially issued identification with photograph, or other identifying evidence which may include an affidavit of an identifying witness.
(c) The Department may require such additional evidence of identity as it deems necessary.
§ 51.24 Affidavit of identifying witness.
(a) An identifying witness must execute an affidavit in the form prescribed by the Department before the person who accepts the passport application.
(b) A person who has received or expects to receive a fee for his or her services in connection with executing the application or obtaining the passport may not serve as an identifying witness.
§ 51.25 Name of applicant to be used in passport.
(a) The passport shall be issued in the full name of the applicant, generally the name recorded in the evidence of nationality and identity.
(b) The applicant must explain any material discrepancies between the name on the application and the name recorded in the evidence of nationality and identity. The name provided by the applicant on the application may be used if the applicant submits the documentary evidence prescribed by the Department.
(c) A name change will be recognized for purposes of issuing a passport if the name change occurs in one of the following ways.
(1) Court order or decree. An applicant whose name has been changed by court order or decree must submit with his or her application a copy of the order or decree.
Acceptable types of court orders and decrees include but are not limited to:
(i) A name change order;
(ii) A divorce decree specifically declaring the return to a former name;
(2) Certificate of naturalization issued in a new name.
(3) Marriage. An applicant who has adopted a new name following marriage must present a copy of the marriage certificate.
(4) Operation of state law. An applicant must present operative government-issued legal documentation declaring the name change or issued in the new name.
(5) Customary usage. An applicant who has adopted a new name other than as prescribed in paragraphs (c)(1) through (4) of this section must submit evidence of public and exclusive use of the adopted name for a long period of time, in general five years, as prescribed in guidance issued by the Department. The evidence must include three or more public documents, including one government-issued identification with photograph and other acceptable public documents prescribed by the Department.
§ 51.26 Photographs.
The applicant must submit with his or her application photographs as prescribed by the Department that are a good likeness of and satisfactorily identify the applicant.
§ 51.27 Incompetents.
A legal guardian or other person with the legal capacity to act on behalf of a person declared incompetent may execute a passport application on the incompetent person’s behalf.
§ 51.28 Minors.
(a) Minors under age 16 – (1) Personal appearance. Minors under 16 years of age applying for a passport must appear in person, unless the personal appearance of the minor is specifically excused by a senior passport authorizing officer, pursuant to guidance issued by the Department. In cases where personal appearance is excused, the person(s) executing the passport application on behalf of the minor shall appear in person and verify the application by oath or affirmation before a person authorized by the Secretary to administer oaths or affirmations, unless these requirements are also excused by a senior passport authorizing officer pursuant to guidance issued by the Department.
(2) Execution of passport application by both parents or by each legal guardian. Except as specifically provided in this section, both parents or each of the minor’s legal guardians, if any, whether applying for a passport for the first time or for a renewal, must execute the application on behalf of a minor under age 16 and provide documentary evidence of parentage or legal guardianship showing the minor’s name, date and place of birth, and the names of the parent or parents or legal guardian.
(3) Execution of passport application by one parent or legal guardian. A passport application may be executed on behalf of a minor under age 16 by only one parent or legal guardian if such person provides:
(i) A notarized written statement or affidavit from the non-applying parent or legal guardian, if applicable, consenting to the issuance of the passport, or
(ii) Documentary evidence that such person is the sole parent or has sole custody of the minor. Such evidence includes, but is not limited to, the following:
(A) A birth certificate providing the minor’s name, date and place of birth and the name of only the applying parent;
(B) A Consular Report of Birth Abroad of a Citizen of the United States of America or a Certification of Report of Birth of a United States Citizen providing the minor’s name, date and place of birth and the name of only the applying parent;
(C) A copy of the death certificate for the non-applying parent or legal guardian;
(D) An adoption decree showing the name of only the applying parent;
(E) An order of a court of competent jurisdiction granting sole legal custody to the applying parent or legal guardian containing no travel restrictions inconsistent with issuance of the passport; or, specifically authorizing the applying parent or legal guardian to obtain a passport for the minor, regardless of custodial arrangements; or specifically authorizing the travel of the minor with the applying parent or legal guardian;
(F) An order of a court of competent jurisdiction terminating the parental rights of the non-applying parent or declaring the non-applying parent or legal guardian to be incompetent.
(G) An order of a court of competent jurisdiction providing for joint legal custody or requiring the permission of both parents or the court for important decisions will be interpreted as requiring the permission of both parents or the court, as appropriate. Notwithstanding the existence of any such court order, a passport may be issued when compelling humanitarian or emergency reasons relating to the welfare of the minor exist.
(4) Execution of passport application by a person acting in loco parentis. (i) A person may apply in loco parentis on behalf of a minor under age 16 by submitting a notarized written statement or a notarized affidavit from both parents or each legal guardian, if any, specifically authorizing the application.
(ii) If only one parent or legal guardian provides the notarized written statement or notarized affidavit, the applicant must provide documentary evidence that an application may be made by one parent or legal guardian, consistent with § 51.28(a)(3)
(5) Exigent or special family circumstances. A passport may be issued when only one parent, legal guardian or person acting in loco parentis executes the application, in cases of exigent or special family circumstances.
(i) “Exigent circumstances” are defined as time-sensitive circumstances in which the inability of the minor to obtain a passport would jeopardize the health and safety or welfare of the minor or would result in the minor being separated from the rest of his or her traveling party. “Time sensitive” generally means that there is not enough time before the minor’s emergency travel to obtain either the required consent of both parents/legal guardians or documentation reflecting a sole parent’s/legal guardian’s custody rights.
(ii) “Special family circumstances” are defined as circumstances in which the minor’s family situation makes it exceptionally difficult for one or both of the parents to execute the passport application; and/or compelling humanitarian circumstances where the minor’s lack of a passport would jeopardize the health, safety, or welfare of the minor; or, pursuant to guidance issued by the Department, circumstances in which return of a minor to the jurisdiction of his or her home state or habitual residence is necessary to permit a court of competent jurisdiction to adjudicate or enforce a custody determination. A passport issued due to such special family circumstances may be limited for direct return to the United States in accordance with § 51.60(e).
(iii) A parent, legal guardian, or person acting in loco parentis who is applying for a passport for a minor under age 16 under this paragraph must submit a written statement with the application describing the exigent or special family circumstances he or she believes should be taken into consideration in applying an exception.
(iv) Determinations under § 51.28(a)(5) must be made by a senior passport authorizing officer pursuant to guidance issued by the Department.
(6) Nothing contained in this section shall prohibit any Department official adjudicating a passport application filed on behalf of a minor from requiring an applicant to submit other documentary evidence deemed necessary to establish the applying adult’s entitlement to obtain a passport on behalf of a minor under the age of 16 in accordance with the provisions of this regulation.
(b) Minors 16 years of age and above. (1) A minor 16 years of age and above applying for a passport must appear in person and may execute the application for a passport on his or her own behalf unless the personal appearance of the minor is specifically excused by a senior passport authorizing officer pursuant to guidance issued by the Department, or unless, in the judgment of the person before whom the application is executed, it is not advisable for the minor to execute his or her own application. In such case, it must be executed by a parent or legal guardian of the minor, or by a person in loco parentis, unless the personal appearance of the parent, legal guardian or person in loco parentis is excused by the senior passport authorizing officer pursuant to guidance issued by the Department.
(2) The passport authorizing officer may at any time require a minor 16 years of age and above to submit the notarized consent of a parent, a legal guardian, or a person in loco parentis to the issuance of the passport.
(c) Rules applicable to all minors – (1) Objections. At any time prior to the issuance of a passport to a minor, the application may be disapproved and a passport may be denied upon receipt of a written objection from a parent or legal guardian of the minor, or from another party claiming authority to object, so long as the objecting party provides sufficient documentation of his or her custodial rights or other authority to object.
(2) An order from a court of competent jurisdiction providing for joint legal custody or requiring the permission of both parents or the court for important decisions will be interpreted as requiring the permission of both parents or the court as appropriate.
(3) The Department will consider a court of competent jurisdiction to be a U.S. state or federal court or a foreign court located in the minor’s home state or place of habitual residence.
(4) The Department may require that conflicts regarding custody orders, whether domestic or foreign, be settled by the appropriate court before a passport may be issued.
(5) Access by parents and legal guardians to passport records for minors. Either parent or any legal guardian of a minor may upon written request obtain information regarding the application for and issuance of a passport to a minor, unless the requesting parent’s parental rights have been terminated by an order of a court of competent jurisdiction, a copy of which has been provided to the Department. The Department may deny such information to a parent or legal guardian if it determines that the minor objects to disclosure and the minor is 16 years of age or older or if the Department determines that the minor is of sufficient age and maturity to invoke his or her own privacy rights.
Subpart C – Evidence of U.S. Citizenship or Nationality
§ 51.40 Burden of proof.
The applicant has the burden of proving that he or she is a U.S. citizen or non-citizen national.
§ 51.41 Documentary evidence.
The applicant must provide documentary evidence that he or she is a U.S. citizen or non-citizen national.
§ 51.42 Persons born in the United States applying for a passport for the first time.
(a) Primary evidence of birth in the United States. A person born in the United States generally must submit a birth certificate. The birth certificate must show the full name of the applicant, the applicant’s place and date of birth, the full name of the parent(s), and must be signed by the official custodian of birth records, bear the seal of the issuing office, and show a filing date within one year of the date of birth.
(b) Secondary evidence of birth in the United States. If the applicant cannot submit a birth certificate that meets the requirement of paragraph (a) of this section, he or she must submit secondary evidence sufficient to establish to the satisfaction of the Department that he or she was born in the United States. Secondary evidence includes but is not limited to hospital birth certificates, baptismal certificates, medical and school records, certificates of circumcision, other documentary evidence created shortly after birth but generally not more than 5 years after birth, and/or affidavits of persons having personal knowledge of the facts of the birth.
§ 51.43 Persons born outside the United States applying for a passport for the first time.
(a) General. A person born outside the United States must submit documentary evidence that he or she meets all the statutory requirements for acquisition of U.S. citizenship or non-citizen nationality under the provision of law or treaty under which the person is claiming U.S. citizenship or non-citizen nationality.
(b) Documentary evidence. (1) Types of documentary evidence of citizenship for a person born outside the United States include:
(i) A certificate of naturalization.
(ii) A certificate of citizenship.
(iii) A Consular Report of Birth Abroad.
(2) An applicant without one of these documents must produce supporting documents as required by the Department, showing acquisition of U.S. citizenship under the relevant provisions of law.
§ 51.44 Proof of resumption or retention of U.S. citizenship.
An applicant who claims to have resumed or retained U.S. citizenship must submit with the application a certificate of naturalization or evidence that he or she took the steps necessary to resume or retain U.S. citizenship in accordance with the applicable provision of law.
§ 51.45 Department discretion to require evidence of U.S. citizenship or non-citizen nationality.
The Department may require an applicant to provide any evidence that it deems necessary to establish that he or she is a U.S. citizen or non-citizen national, including evidence in addition to the evidence specified in 22 CFR 51.42 through 51.44.
§ 51.46 Return or retention of evidence of U.S. citizenship or non-citizen nationality.
The Department will generally return to the applicant evidence submitted in connection with an application for a passport. The Department may, however, retain evidence when it deems it necessary for anti-fraud or law enforcement or other similar purposes.
Subpart D – Fees
§ 51.50 Form of payment.
Passport fees must be paid in U.S. currency or in other forms of payments permitted by the Department.
§ 51.51 Passport fees.
The Department collects the following passport fees in the amounts prescribed in the Schedule of Fees for Consular Services (22 CFR 22.1):
(a) An application fee, which must be paid at the time of application, except as provided in § 51.52, and is not refundable, except as provided in § 51.53.
(b) An execution fee, except as provided in § 51.52, when the applicant is required to execute the application in person before a person authorized to administer oaths for passport purposes. The execution fee is collected at the time of application and is not refundable (see § 51.55). When execution services are provided by an official of a State or local government or of the United States Postal Service (USPS), the State or local government or USPS may retain the fee if authorized to do so by the Department.
(c) A fee for expedited passport processing, if applicable (see § 51.56).
(d) A surcharge in the amount of twenty-two dollars ($22) on the filing of each application for a passport book, in the amount of twenty-two dollars ($22) on the filing of each application for a passport card for an applicant age 16 or over, and in the amount of fifteen dollars ($15) on the filing of each application for a passport card for an applicant under age 16, in order to cover the costs of meeting the increased demand for passports as a result of actions taken to comply with section 7209(b) of the Intelligence Reform and Terrorism Prevention Act of 2004, Public Law 108-458 (8 U.S.C. 1185 note). The surcharge will be recovered by the Department of State from within the passport application fee reflected in the Schedule of Fees for Consular Services.
(e) An “enhanced border security” surcharge on the filing of each application for a regular passport in an amount set administratively by the Department and published in the Schedule of Fees for Consular Services.
(f) Any other fee that the Department is authorized or required by law to charge for passport services.
(g) The foregoing fees are applicable regardless of the validity period of the passport.
§ 51.52 Exemption from payment of passport fees.
(a) A person who is exempt from the payment of passport fees under this section may obtain a passport book only for no charge. A passport card will not be issued for no charge to the individuals exempt from the payment of passport fees under this section.
(b) The following persons are exempt from payment of passport fees except for the passport execution fee, unless their applications are executed before a federal official, in which case they are also exempt from payment of the passport execution fee:
(1) An officer or employee of the United States traveling on official business and the members of his or her immediate family. The applicant must submit evidence of the official purpose of the travel and, if applicable, authorization for the members of his or her immediate family to accompany or reside with him or her abroad.
(2) An American seaman who requires a passport in connection with his or her duties aboard a United States flag vessel.
(3) A widow, widower, child, parent, brother or sister of a deceased member of the United States Armed Forces proceeding abroad to visit the grave of such service member or to attend a funeral or memorial service for such member.
(4) Other persons whom the Department determines should be exempt from payment of passport fees for compelling circumstances, pursuant to guidance issued by the Department; or
(5) Other categories of persons exempted by law.
§ 51.53 Refunds.
(a) The Department will refund the passport application fee and the security surcharge to any person exempt from payment of passport fees under 22 CFR 51.52 from whom the fee was erroneously collected.
(b) The Department will refund an expedited passport processing fee if the Department fails to provide expedited passport processing as provided in 22 CFR 51.56.
(c) For procedures on refunds of $5.00 or less, see 22 CFR 22.6(b).
§ 51.54 Replacement passports without payment of applicable fees.
A passport issuing office may issue a replacement passport for the following reasons without payment of applicable fees:
(a) To correct an error or rectify a mistake of the Department;
(b) When the bearer has changed his or her name or other personal identifier listed on the data page of the passport, and applies for a replacement passport within one year of the date of the passport’s original issuance.
(c) When the bearer of an emergency full fee passport issued for a limited validity period applies for a full validity passport within one year of the date of the passport’s original issuance.
(d) When a passport is retained by U.S. law enforcement or judiciary for evidentiary purposes and the bearer is still eligible to have a passport.
(e) When a passport is issued to replace a passport with a failed electronic chip for the balance of the original validity period.
§ 51.55 Execution fee not refundable.
The fee for the execution of a passport application is not refundable.
§ 51.56 Expedited passport processing.
(a) Within the United States, an applicant for passport service (including issuance or replacement of a passport) may request expedited processing. The Department may decline the request.
(b) Expedited passport processing shall mean completing processing within the number of business days published on the Department’s Web site, http://www.travel.state.gov, commencing when the application reaches a Passport Agency or, if the application is already with a Passport Agency, commencing when the request for expedited processing is approved. The processing will be considered completed when the passport is ready to be picked up by the applicant or is mailed to the applicant, or a letter of passport denial is transmitted to the applicant.
(c) A fee is charged for expedited passport processing (see 22 CFR 51.51(c)). The fee does not cover any costs of mailing above the normal level of service regularly provided by the Department. The cost of expedited mailing must be paid by the applicant.
(d) The Department will not charge the fee for expedited passport processing if the Department’s error, mistake or delay caused the need for expedited processing.
Subpart E – Denial, Revocation, and Restriction of Passports and Cancellation of Consular Reports of Birth Abroad
§ 51.60 Denial and restriction of passports.
(a) The Department may not issue a passport, except a passport for direct return to the United States, in any case in which the Department determines or is informed by competent authority that:
(1) The applicant is in default on a loan received from the United States under 22 U.S.C. 2671(b)(2)(B) for the repatriation of the applicant and, where applicable, the applicant’s spouse, minor child(ren), and/or other immediate family members, from a foreign country (see 22 U.S.C. 2671(d)); or
(2) The applicant has been certified by the Secretary of Health and Human Services as notified by a state agency under 42 U.S.C. 652(k) to be in arrears of child support in an amount determined by statute.
(3) [Reserved]
(4) The applicant is a covered sex offender as defined in 22 U.S.C. 212b(c)(1), unless the passport, no matter the type, contains the conspicuous identifier placed by the Department as required by 22 U.S.C. 212b.
(b) The Department may refuse to issue a passport in any case in which the Department determines or is informed by competent authority that:
(1) The applicant is the subject of an outstanding Federal warrant of arrest for a felony, including a warrant issued under the Federal Fugitive Felon Act (18 U.S.C. 1073); or
(2) The applicant is subject to a criminal court order, condition of probation, or condition of parole, any of which forbids departure from the United States and the violation of which could result in the issuance of a Federal warrant of arrest, including a warrant issued under the Federal Fugitive Felon Act; or
(3) The applicant is subject to a U.S. court order committing him or her to a mental institution; or
(4) The applicant has been legally declared incompetent by a court of competent jurisdiction in the United States; or
(5) The applicant is the subject of a request for extradition or provisional request for extradition which has been presented to the government of a foreign country; or
(6) The applicant is the subject of a subpoena received from the United States pursuant to 28 U.S.C. 1783, in a matter involving Federal prosecution for, or grand jury investigation of, a felony; or
(7) The applicant is a minor and the passport may be denied under 22 CFR 51.28; or
(8) The applicant is subject to an order of restraint or apprehension issued by an appropriate officer of the United States Armed Forces pursuant to chapter 47 of title 10 of the United States Code; or
(9) The applicant is the subject of an outstanding state or local warrant of arrest for a felony; or
(10) The applicant is the subject of a request for extradition or provisional arrest submitted to the United States by a foreign country.
(c) The Department may refuse to issue a passport in any case in which:
(1) The applicant has not repaid a loan received from the United States under 22 U.S.C. 2670(j) for emergency medical attention, dietary supplements, and other emergency assistance, including, if applicable, assistance provided to his or her child(ren), spouse, and/or other immediate family members in a foreign country; or
(2) The applicant has not repaid a loan received from the United States under 22 U.S.C. 2671(b)(2)(B) or 22 U.S.C. 2671(b)(2)(A) for the repatriation or evacuation of the applicant and, if applicable, the applicant’s child(ren), spouse, and/or other immediate family members from a foreign country to the United States; or
(3) The applicant has previously been denied a passport under this section or 22 CFR 51.61, or the Department has revoked the applicant’s passport or issued a limited passport for direct return to the United States under 22 CFR 51.62, and the applicant has not shown that there has been a change in circumstances since the denial, revocation or issuance of a limited passport that warrants issuance of a passport; or
(4) The Secretary determines that the applicant’s activities abroad are causing or are likely to cause serious damage to the national security or the foreign policy of the United States.
(d) The Department may refuse to issue a passport in a case in which the Department is informed by an appropriate foreign government authority or international organization that the applicant is the subject of a warrant of arrest for a felony.
(e) The Department may refuse to issue a passport, except a passport for direct return to the United States, in any case in which the Department determines or is informed by a competent authority that the applicant is a minor who has been abducted, wrongfully removed or retained in violation of a court order or decree and return to his or her home state or habitual residence is necessary to permit a court of competent jurisdiction to determine custody matters.
(f) The Department may refuse to issue a passport to an applicant who fails to provide his or her Social Security account number on his or her passport application or who willfully, intentionally, negligently, or recklessly includes an incorrect or invalid Social Security account number.
(g) The Department shall not issue a passport card to an applicant who is a covered sex offender as defined in 22 U.S.C. 212b(c)(1).
(h) The Department may not issue a passport, except a limited validity passport for direct return to the United States or in instances where the Department finds that emergency circumstances or humanitarian reasons exist, in any case in which:
(1) The Department is notified by the Attorney General that, during the covered period as defined by 22 U.S.C. 212a:
(i) The applicant was convicted of a violation of 18 U.S.C. 2423, and
(ii) The individual used a passport or passport card or otherwise crossed an international border in committing the underlying offense.
(2) The applicant is certified by the Secretary of the Treasury as having a seriously delinquent tax debt as described in 26 U.S.C. 7345.
(i) In appropriate circumstances, where an individual’s passport application is denied or passport revoked consistent with this part, the Department may issue a limited validity passport good only for direct return to the United States.
§ 51.61 Denial of passports to certain convicted drug traffickers.
(a) A passport may not be issued in any case in which the Department determines or is informed by competent authority that the applicant is subject to imprisonment or supervised release as the result of a felony conviction for a Federal or state drug offense, if the individual used a U.S. passport or otherwise crossed an international border in committing the offense, including a felony conviction arising under:
(1) The Controlled Substances Act (21 U.S.C. 801 et seq.) or the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.); or
(2) Any Federal law involving controlled substances as defined in section 802 of the Controlled Substances Act (21 U.S.C. 801 et seq.); or
(3) The Bank Secrecy Act (31 U.S.C. 5311 et seq.) or the Money Laundering Act (18 U.S.C. 1956 et seq.) if the Department is in receipt of information that supports the determination that the violation involved is related to illicit production of or trafficking in a controlled substance; or
(4) Any state law involving the manufacture, distribution, or possession of a controlled substance.
(b) A passport may be refused in any case in which the Department determines or is informed by competent authority that the applicant is subject to imprisonment or supervised release as the result of a misdemeanor conviction of a Federal or state drug offense if the individual used a U.S. passport or otherwise crossed an international border in committing the offense, other than a first conviction for possession of a controlled substance, including a misdemeanor conviction arising under:
(1) The Federal statutes described in § 51.61(a); or
(2) Any State law involving the manufacture, distribution, or possession of a controlled substance.
(c) Notwithstanding paragraph (a) of this section, the Department may issue a passport when the competent authority confirms, or the Department otherwise finds, that emergency circumstances or humanitarian reasons exist.
§ 51.62 Revocation or limitation of passports and cancellation of Consular Reports of Birth Abroad.
(a) The Department may revoke or limit a passport when:
(1) The bearer of the passport may be denied a passport under 22 CFR 51.60 or 51.61 or any other applicable provision contained in this part;
(2) The passport was illegally, fraudulently or erroneously obtained from the Department; or was created through illegality or fraud practiced upon the Department; or
(3) The passport has been fraudulently altered or misused.
(b) The Department may revoke a passport when the Department has determined that the bearer of the passport is not a U.S. national, or the Department is on notice that the bearer’s certificate of citizenship or certificate of naturalization has been cancelled.
(c) The Department may cancel a Consular Report of Birth Abroad when:
(1) The Consular Report of Birth Abroad was illegally, fraudulently or erroneously obtained from the Department, or was created through illegality or fraud practiced upon the Department;
(2) The Consular Report of Birth Abroad has been fraudulently altered or misused; or
(3) The Department has determined that the bearer of the Consular Report of Birth Abroad is not a U.S. national, or the Department is on notice that the bearer’s certificate of citizenship has been cancelled.
(d) The Department shall revoke a U.S. passport in any case in which the Department is notified by the Attorney General, that during the covered period as defined by 22 U.S.C. 212a:
(1) The applicant was convicted of a violation of 18 U.S.C. 2423, and
(2) The individual used a passport or otherwise crossed an international border in committing the underlying offense.
(3) Notwithstanding paragraphs (d)(1) and (2) of this section, the Department may issue a limited validity passport for direct return to the United States.
§ 51.63 Passports invalid for travel into or through restricted areas; prohibition on passports valid only for travel to Israel.
(a) The Secretary may restrict the use of a passport for travel to or use in a country or area which the Secretary has determined is:
(1) A country with which the United States is at war; or
(2) A country or area where armed hostilities are in progress; or
(3) A country or area in which there is imminent danger to the public health or physical safety of United States travelers.
(b) Any determination made and restriction imposed under paragraph (a) of this section, or any extension or revocation of the restriction, shall be published in the
(c) A passport may not be designated as valid only for travel to Israel.
§ 51.64 Special validation of passports for travel to restricted areas.
(a) A U.S. national may apply to the Department for a special validation of his or passport to permit its use for travel to, or use in, a restricted country or area. The application must be accompanied by evidence that the applicant falls within one of the categories in paragraph (c) of this section.
(b) The Department may grant a special validation if it determines that the validation is in the national interest of the United States.
(c) A special validation may be determined to be in the national interest if:
(1) The applicant is a professional reporter or journalist, the purpose of whose trip is to obtain, and make available to the public, information about the restricted area; or
(2) The applicant is a representative of the International Committee of the Red Cross or the American Red Cross traveling pursuant to an officially-sponsored Red Cross mission; or
(3) The applicant’s trip is justified by compelling humanitarian considerations; or
(4) The applicant’s request is otherwise in the national interest.
§ 51.65 Notification of denial, revocation or cancellation of passports and Consular Reports of Birth Abroad.
(a) The Department will send notice in writing to any person whose application for issuance of a passport or Consular Report of Birth Abroad has been denied, whose passport has been revoked, or whose Consular Report of Birth Abroad has been cancelled. The notification will set forth the specific reasons for the denial, revocation or cancellation and, if applicable, the procedures for review available under 22 CFR 51.70 through 51.74.
(b) An application for a passport or Consular Report of Birth Abroad will be denied if an applicant fails to meet his or her burden of proof under the applicable regulations or otherwise does not provide documentation sufficient to establish entitlement to a passport or a Consular Report of Birth Abroad, or does not provide additional information as requested by the Department within the time provided in the notification by the Department that additional information is required. Thereafter, if an applicant wishes the Department to adjudicate his or her claim of entitlement to a passport or Consular Report of Birth Abroad, he or she must submit a new application, supporting documents, and photograph, along with all applicable fees.
(c) The Department may, in its sole discretion, administratively re-open a previously filed passport or Consular Report of Birth Abroad application in order to issue a passport or Consular Report of Birth Abroad.
§ 51.66 Surrender of passport and/or Consular Report of Birth Abroad.
The bearer of a passport that is revoked or of a Consular Report of Birth Abroad that is cancelled must surrender it to the Department or its authorized representative upon demand.
Subpart F – Procedures for Review of Certain Denials and Revocations
§ 51.70 Request for hearing to review certain denials and revocations.
(a) A person whose passport has been denied or revoked under 22 CFR 51.60(b)(1) through (10), 51.60(c), 51.60(d), 51.61(b), 51.62(a)(1), or 51.62(a)(2), or whose Consular Report of Birth Abroad is cancelled under § 51.62(c)(1) or § 51.62(c)(2), may request a hearing to review the basis for the denial, revocation, or cancellation, provided that the Department receives such a request, in writing, from such person or his or her attorney within 60 days of his or her receipt of the notice of the denial, revocation, or cancellation. Failure to timely request a hearing means the denial, revocation, or cancellation is the Department’s final action.
(b) The provisions of §§ 51.70 through 51.74 do not apply to any action of the Department denying, restricting, revoking, cancelling or invalidating a passport or Consular Report of Birth Abroad, or in any other way adversely affecting the ability of a person to receive or use a passport or Consular Report of Birth Abroad, for reasons not set forth in § 51.70(a), including, as applicable, those listed at:
(1) Section 51.60(a) (instances where the Department may not issue a passport, except for direct return to the United States);
(2) Section 51.60(f) (failure to provide a social security number, or purposefully providing an incorrect number);
(3) Section 51.60(g) (denial of passport cards to certain convicted sex offenders);
(4) Section 51.61(a) (denial of passports to certain convicted drug traffickers);
(5) Section 51.62(b) (revocation of passports for non-U.S. nationals or where a certificate of citizenship or naturalization has been cancelled);
(6) Section 51.62(c)(3) (cancellation of a Consular Report of Birth Abroad upon the Department’s determination that the bearer is not a U.S. national or where a certificate of citizenship has been cancelled);
(7) Section 51.62(d) (revocation of passports issued to certain convicted sex offenders);
(8) Section 51.64 (specially validated passports);
(9) Any other provision not listed at § 51.70(a).
(c) If a timely request for a hearing is made by a person seeking a hearing in accordance with these regulations, the Department will make reasonable efforts to hold the hearing within 90 days of the date the Department receives the request.
(d) Within a reasonable period of time prior to the hearing, the Department will give the person requesting the hearing written notice of the date, time and place of the hearing and copies of the evidence relied on in denying, revoking, or cancelling the passport or Consular Report of Birth Abroad.
(e) The person requesting the hearing may obtain one continuance, not to exceed an additional 90 days, upon written request. The request for a continuance must be received by the Department as soon as practicable and in no case less than five business days prior to the scheduled hearing date. Any further continuances are within the sole discretion of the Department.
§ 51.71 The hearing.
(a) The Department will name a hearing officer, who will generally be a Department employee from the Bureau of Consular Affairs. The hearing officer will make only preliminary findings of fact and submit recommendations based on the record of the hearing, as defined in 22 CFR 51.72, to the Deputy Assistant Secretary for Passport Services, or his or her designee, in the Bureau of Consular Affairs.
(b) The hearing shall take place in Washington, DC or, if the person requesting the hearing is overseas, at the appropriate U.S. diplomatic or consular post. The person requesting the hearing must appear in person or with or through his or her attorney. Failure to appear at the scheduled hearing will constitute an abandonment of the request for a hearing, and the Department’s revocation, cancellation or denial will be considered the Department’s final action.
(c) Any attorney appearing at a hearing must be admitted to practice in any state of the United States, the District of Columbia, or any territory or possession of the United States, or be admitted to practice before the courts of the country in which the hearing is to be held.
(d) There is no right to subpoena witnesses or to conduct discovery. However, the person requesting the hearing may testify in person, offer evidence in his or her own behalf, present witnesses, and make arguments at the hearing. The person requesting the hearing is responsible for all costs associated with the presentation of his or her case, including the cost of interpreters, who must be certified in accordance with standards established for federal courts under 28 U.S.C. 1827. The Department may present witnesses, offer evidence, and make arguments in its behalf. The Department is responsible for all costs associated with the presentation of its case.
(e) The hearing is informal and permissive. As such, the provisions of 5 U.S.C. 554 et seq. do not apply to the hearing. Formal rules of evidence also do not apply; however, the hearing officer may impose reasonable restrictions on relevancy, materiality, and competency of evidence presented. Testimony will be under oath or by affirmation under penalty of perjury. The hearing officer may not consider any information that is not also made available to the person requesting the hearing, the Department, and made a part of the record of the proceeding.
(f) If any witness is unable to appear, the hearing officer may, in his or her discretion, accept an affidavit or sworn deposition testimony of the witness, the cost for which will be the responsibility of the requesting party, subject to such limits as the hearing officer deems appropriate.
(g) The person requesting the hearing and the Department of State may submit written briefs or argument prior to the hearing, but it is not required. The hearing officer will specify the date and schedule for the parties to submit written briefs, should they choose to do so.
(h) The purpose of the hearing is to provide the person requesting the hearing an opportunity to challenge the basis for the Department’s decision to deny or revoke the passport, or cancel the Consular Report of Birth Abroad. The burden of production is on the Department, and the Department shall provide the evidence it relied upon in revoking or denying the passport, or cancelling the Consular Report of Birth Abroad, prior to the hearing. The burden of persuasion is on the person requesting the hearing, to prove by a preponderance of the evidence that the Department improperly revoked the passport or denied the passport application, or cancelled the Consular Report of Birth Abroad, based on the facts and law in effect at the time such action was taken.
§ 51.72 Transcript and record of the hearing.
A qualified reporter, provided by the Department, will make a complete verbatim transcript of the hearing. The person requesting the hearing or his or her attorney may review and purchase a copy of the transcript directly from the reporter. The hearing transcript and all the information and documents received by the hearing officer, whether or not deemed relevant, will constitute the record of the hearing. The hearing officer’s preliminary findings and recommendations are deliberative, and shall not be considered part of the record unless adopted by the Deputy Assistant Secretary for Passport Services, or his or her designee.
§ 51.73 Privacy of hearing.
Only the person requesting the hearing, his or her attorney, an interpreter, the hearing officer, the reporter transcribing the hearing, and employees of the Department concerned with the presentation of the case may be present at the hearing. Witnesses may be present only while actually giving testimony or as otherwise directed by the hearing officer.
§ 51.74 Final decision.
After reviewing the record of the hearing and the preliminary findings of fact and recommendations of the hearing officer, and considering legal and policy considerations he or she deems relevant, the Deputy Assistant Secretary for Passport Services, or his or her designee, will decide whether to uphold the denial or revocation of the passport or cancellation of the Consular Report of Birth Abroad. The Department will promptly notify the person requesting the hearing of the decision in writing. If the decision is to uphold the denial, revocation, or cancellation, the notice will contain the reason(s) for the decision. The decision is final and is not subject to further administrative review.
PART 53 – PASSPORT REQUIREMENT AND EXCEPTIONS
§ 53.1 Passport requirement; definitions.
(a) It is unlawful for a citizen of the United States, unless excepted under 22 CFR 53.2, to enter or depart, or attempt to enter or depart, the United States, without a valid U.S. passport.
(b) For purposes of this part “United States” means “United States” as defined in section 215(c) of the Immigration and Nationality Act of 1952, as amended (8 U.S.C. 1185(c)).
§ 53.2 Exceptions.
(a) U.S. citizens, as defined in § 41.0 of this chapter, are not required to bear U.S. passports when traveling directly between parts of the United States as defined in § 51.1 of this chapter.
(b) A U.S. citizen is not required to bear a valid U.S. passport to enter or depart the United States:
(1) When traveling as a member of the Armed Forces of the United States on active duty and when he or she is in the uniform of, or bears documents identifying him or her as a member of, such Armed Forces, when under official orders or permit of such Armed Forces, and when carrying a military identification card; or
(2) When traveling entirely within the Western Hemisphere on a cruise ship, and when the U.S. citizen boards the cruise ship at a port or place within the United States and returns on the return voyage of the same cruise ship to the same United States port or place from where he or she originally departed. That U.S. citizen may present a government-issued photo identification document in combination with either an original or a copy of his or her birth certificate, a Consular Report of Birth Abroad issued by the Department, or a Certificate of Naturalization issued by U.S. Citizenship and Immigration Services before entering the United States; if the U.S. citizen is under the age of 16, he or she may present either an original or a copy of his or her birth certificate, a Consular Report of Birth Abroad issued by the Department, or a Certificate of Naturalization issued by U.S. Citizenship and Immigration Services; or
(3) When traveling as a U.S. citizen seaman, carrying an unexpired Merchant Marine Document (MMD) in conjunction with maritime business. The MMD is not sufficient to establish citizenship for purposes of issuance of a United States passport under part 51 of this chapter; or
(4) Trusted traveler programs – (i) NEXUS Program. When traveling as a participant in the NEXUS program, he or she may present a valid NEXUS program card when using a NEXUS Air kiosk or when entering the United States from contiguous territory or adjacent islands at a land or sea port-of-entry. A U.S. citizen who enters the United States by pleasure vessel from Canada under the remote inspection system may also present a NEXUS program card;
(ii) FAST program. A U.S. citizen who is traveling as a participant in the FAST program may present a valid FAST card when entering the United States from contiguous territory or adjacent islands at a land or sea port-of-entry;
(iii) SENTRI program. A U.S. citizen who is traveling as a participant in the SENTRI program may present a valid SENTRI card when entering the United States from contiguous territory or adjacent islands at a land or sea port-of-entry; The NEXUS, FAST, and SENTRI cards are not sufficient to establish citizenship for purposes of issuance of a U.S. passport under part 51 of this chapter; or
(5) When arriving at land ports of entry and sea ports of entry from contiguous territory or adjacent islands, Native American holders of American Indian Cards (Form I-872) issued by U.S. Citizenship and Immigration Services (USCIS) may present those cards; or
(6) When arriving at land or sea ports of entry from contiguous territory or adjacent islands, U.S. citizen holders of a tribal document issued by a United States qualifying tribal entity or group of United States qualifying tribal entities as provided in 8 CFR 235.1(e) may present that document. Tribal documents are not sufficient to establish citizenship for purposes of issuance of a United States passport under part 51 of this chapter; or
(7) When bearing documents or combinations of documents the Secretary of Homeland Security has determined under Section 7209(b) of Public Law 108-458 (8 U.S.C. 1185 note) are sufficient to denote identity and citizenship. Such documents are not sufficient to establish citizenship for purposes of issuance of a U.S. passport under part 51 of this chapter; or
(8) When the U.S. citizen is employed directly or indirectly on the construction, operation, or maintenance of works 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 (IBWC), TS 994, 9 Bevans 1166, 59 Stat. 1219, or other related agreements, provided that the U.S. citizen bears an official identification card issued by the IBWC and is traveling in connection with such employment; or
(9) When the Department of State waives, pursuant to EO 13323 of December 30, 2003, Section 2, the requirement with respect to the U.S. citizen because there is an unforeseen emergency; or
(10) When the Department of State waives, pursuant to EO 13323 of December 30, 2003, Sec 2, the requirement with respect to the U.S. citizen for humanitarian or national interest reasons; or
(11) When the U.S. citizen is a child under the age of 19 arriving from contiguous territory in the following circumstances:
(i) Children under age 16. A United States citizen who is under the age of 16 is permitted to present either an original or a copy of his or her birth certificate, a Consular Report of Birth Abroad, or a Certificate of Naturalization issued by U.S. Citizenship and Immigration Services when entering the United States from contiguous territory at land or sea ports-of-entry; or
(ii) Groups of children under age 19. A U.S. citizen who is under age 19 and who is traveling with a public or private school group, religious group, social or cultural organization, or team associated with a youth sport organization may present either an original or a copy of his or her birth certificate, a Consular Report of Birth Abroad, or a Certificate of Naturalization issued by U.S. Citizenship and Immigration Services when arriving in the United States from contiguous territory at all land or sea ports of entry, when the group, organization or team is under the supervision of an adult affiliated with the organization and when the child has parental or legal guardian consent to travel. For purposes of this paragraph, an adult is considered to be a person who is age 19 or older. The following requirements will apply:
(A) The group, organization, or team must provide to CBP upon crossing the border on organizational letterhead:
(1) The name of the group, organization or team, and the name of the supervising adult;
(2) A list of the children on the trip; and
(3) For each child, the primary address, primary phone number, date of birth, place of birth, and the name of at least one parent or legal guardian.
(B) The adult leading the group, organization, or team must demonstrate parental or legal guardian consent by certifying in the writing submitted in paragraph (b)(11)(ii)(A) of this section that he or she has obtained for each child the consent of at least one parent or legal guardian.
(C) The procedure described in this paragraph is limited to members of the group, organization, or team who are under age 19. Other members of the group, organization, or team must comply with other applicable document and/or inspection requirements found in 8 CFR parts 211, 212, or 235.
§ 53.3 Attempt of a citizen to enter without a valid passport.
The appropriate officer at the port of entry shall report to the Department of State any citizen of the United States who attempts to enter the United States contrary to the provisions of this part, so that the Department of State may apply the waiver provisions of § 53.2(h) and § 53.2(i) to such citizen, if appropriate.
§ 53.4 Optional use of a valid passport.
Nothing in this part shall be construed to prevent a citizen from using a valid U.S. passport in a case in which that passport is not required by this part 53, provided such travel is not otherwise prohibited.
SUBCHAPTER G – PUBLIC DIPLOMACY AND EXCHANGES
PART 61 – WORLD-WIDE FREE FLOW OF AUDIO-VISUAL MATERIALS
§ 61.1 Purpose.
The Department of State administers the “Beirut Agreement of 1948”, a multinational treaty formally known as the Agreement for Facilitating the International Circulation of Visual and Auditory Material of an Educational, Scientific and Cultural Character. This Agreement facilitates the free flow of educational, scientific and cultural audio-visual materials between nations by providing favorable import treatment through the elimination or reduction of import duties, licenses, taxes, or restrictions. The United States and other participating governments facilitate this favorable import treatment through the issuance or authentication of a certificate that the audio-visual material for which favorable treatment is sought conforms with criteria set forth in the Agreement.
§ 61.2 Definitions.
Department – means the Department of State.
Applicant – means: (1) The United States holder of the “basic rights” in the material submitted for export certification; or (2) the holder of a foreign certificate seeking import authentication.
Application form – means the Application for Certificate of International Educational Character (Form IAP-17) which is required for requesting Department certification of United States produced audio-visual materials under the provisions of the Beirut Agreement.
Attestation Officer – means the Chief Attestation Officer of the United States and any member of his or her staff with authority to issue Certificates or Importation Documents.
Audio-visual materials – means: (1) Films, filmstrips and microfilm in exposed and developed negative form, or in positive form, viz., masters or prints, teletranscriptions, kinescopes, videotape; (2) electronic sound recordings and sound/picture recordings of all types and forms or pressings and transfers thereform; (3) slides and transparencies; moving and static models, wallcharts, globes, maps and posters.
Authentication – means the process through which an applicant obtains a United States Importation Document for Audio-visual Materials (Form IA-862).
Basic rights – means the world-wide non-restrictive ownership rights in audio-visual materials from which the assignment of subsidiary rights (such as language versions, television, limited distribution, reproduction, etc.) are derived.
Beirut Agreement – means the “Agreement for Facilitating the International Circulation of Visual and Auditory Materials of an Educational, Scientific, or Cultural Character.”
Certificate – means a document attesting that the named material complies with the standards set forth in Article I of the Beirut Agreement issued by: (1) The appropriate government agency of the State wherein the material to which the certificate relates originated, or (2) by the United Nations Educational, Scientific or Cultural Organization.
Certification – means the process of obtaining a certificate attesting that audio-visual materials of United States origin being exported from the United States comply with the standards set forth in Article I of the Beirut Agreement, as interpreted pursuant to Section 207 of Public Law 101-138.
Collateral instructional material – means a teacher’s manual, study guide, or similar instructional material prepared or reviewed by a bona fide subject matter specialist. Such material must delineate the informational or instructional objectives of the audio-visual material and illustrate or explain how to utilize such material to attain the stated objectives.
Committee on attestation – means the committee which advises the Attestation Officer on matters of policy and the evaluation of specific materials.
Exports – means educational, scientific, and cultural audio-visual material of United States origin, being sent from the United States.
Importation document – means the United States Importation Document for Audio-visual Materials (Form IA-862) issued by the Chief Attestation Officer of the United States which attests that materials of foreign origin entering the United States comply with the standards set forth in Article I of the Beirut Agreement (as interpreted pursuant to section 207 of Public Law 101-138) and is therefore entitled to duty-free entry into the United States pursuant to the provisions of United States Customs Bureau Harmonized Tariff System Item No. 9817.00.4000.
Imports – means educational, scientific, and cultural audio-visual material of foreign origin being brought into the United States.
Instruct or inform – means to teach, train or impart knowledge through the development of a subject or aspect of a subject to aid the viewer or listener in a learning process. The instructional or informational character of audio-visual material may be evidenced by the presence of collateral instructional material.
Knowledge – means a body of facts and principles acquired by instruction, study, research, or experience.
Review Board – means the panel appointed by the Secretary of State to review appeals filed by applicants from decisions rendered by an Attestation Officer.
Secretary of State – means the Secretary of State of the State Department.
Serial certification – means certification by the Department of materials produced in series form and which, for time-sensitive reasons, cannot be reviewed prior to production; but samples are provided on application, and the materials are subject to post-certification review.
Subject matter specialist – means an individual who has acquired special skill in or knowledge of a particular subject through professional training or practical experience.
§ 61.3 Certification and authentication criteria.
(a) The Department shall certify or authenticate audio-visual materials submitted for review as educational, scientific and cultural in character and in compliance with the standards set forth in Article I of the Beirut Agreement when: (1) Their primary purpose or effect is to instruct or inform through the development of a subject or aspect of a subject, or when their content is such as to maintain, increase or diffuse knowledge, and augment international understanding and goodwill; and
(2) The materials are representative, authentic, and accurate; and
(3) The technical quality is such that it does not interfere with the use made of the material.
(b) The Department will not certify or authenticate any audio-visual material submitted for review which:
(1) Does not primarily instruct or inform through the development of a subject or aspect of a subject and its content is not such as to maintain, increase or diffuse knowledge.
(2) Contains widespread and gross misstatements of fact.
(3) Is not technically sound.
(4) Has as its primary purpose or effect to amuse or entertain.
(5) Has as its primary purpose or effect to inform concerning timely current events (newsreels, newscasts, or other forms of “spot” news).
(6) Stimulates the use of a special process or product, advertises a particular organization or individual, raises funds, or makes unsubstantiated claims of exclusivity.
(c) In its administration of this section, the Department shall not fail to qualify audio-visual material because:
(1) It advocates a particular position or viewpoint, whether or not it presents or acknowledges opposing viewpoints;
(2) It might lend itself to misinterpretation, or to misrepresentation of the United States or other countries, or their people or institutions;
(3) It is not representative, authentic, or accurate or does not represent the current state of factual knowledge of a subject or aspect of a subject unless the material contains widespread and gross misstatements of fact;
(4) It does not augment international understanding and goodwill, unless its primary purpose or effect is not to instruct or inform through the development of a subject or an aspect of a subject and its content is not such as to maintain, increase, or diffuse knowledge; or
(5) In the opinion of the Department the material is propaganda.
(d) The Department may certify or authenticate materials which have not been produced at the time of application upon an affirmative determination that:
(1) The materials will be issued serially,
(2) Representative samples of the serial material have been provided at the time of application,
(3) Future titles and release dates have been provided to the Department at the time of application,
(4) The applicant has affirmed that:
(i) Future released materials in the series will conform to the substantive criteria for certification delineated at paragraphs (a) through (c) of this section;
(ii) Such materials will be similar to the representative samples provided to the Department on application; and
(iii) The applicant will provide the Department with copies of the items themselves or descriptive materials for post-certification review.
(e) If the Department determines through a post-certification review that the materials do not comply with the substantive criteria for certification delineated at paragraphs (a) through (c) of this section, the applicant will no longer be eligible for serial certifications. Ineligibility for serial certifications will not affect an applicant’s eligibility for certification of materials reviewed prior to production.
§ 61.4 Certification procedures – Exports.
(a) Applicants seeking certification of U.S. produced audio-visual materials shall submit to the Department a completed Application Form for each subject or series for which certification is sought. Collateral instructional material, if any, and a copy or example of the material must accompany the Application Form.
(b) Upon an affirmative determination by the Department that the submitted materials satisfy the Certification and Authentication Criteria set forth in § 502.3 of this part, a Certificate shall be issued. A copy of such Certificate must accompany each export shipment of the certified material.
§ 61.5 Authentication procedures – Imports.
(a) Applicants seeking Department authentication of foreign produced audio-visual materials shall submit to the Department a bona fide foreign certificate, a copy or example of the material for which authentication is sought, and related collateral instructional material, if any.
(b) Upon an affirmative determination by the Department that the submitted materials satisfy the Certification and Authentication Criteria set forth in § 502.3 of this part, an Importation Document shall be issued. A copy of such Importation Document must be presented to United States Customs at the port of entry.
§ 61.6 Consultation with subject matter specialists.
(a) The Department may, in its discretion, solicit the opinion of subject matter specialists for the purpose of assisting the Department in its determination of whether materials for which export certification or import authentication is sought contain widespread and gross misstatements of fact.
(b) As necessary, the Department may determine eligibility of material for certification or authentication based in part on the opinions obtained from subject matter specialists and the Committee on Attestation.
§ 61.7 Review and appeal procedures.
(a) An applicant may request a formal review of any adverse ruling rendered by the Attestation Officer. Such request for review must be made in writing and received no more than 30 days from the date of the Attestation Officer’s decision.
(b) The request for review must set forth all arguments which the applicant wishes to advance in support of his or her position and any data upon which such argument is based. A copy of the material for which certification or authentication has been denied must accompany the request for review. The request for review should be addressed as follows: Attestation Program Review Board ECA/GCV – Attestation Officer, Department of State, 301 4th Street, SW., Washington, DC 20547.
(c) The Review Board shall render the applicant a written decision, reversing or affirming the ruling of the Attestation Officer, within 30 days from receipt of the request for review. Such decision shall constitute final administrative action.
§ 61.8 Coordination with United States Customs Service.
(a) Nothing in this part shall preclude examination of imported materials pursuant to the Customs laws and regulations of the United States as codified at 19 U.S.C. 1305 and 19 CFR 10.121, or the application of the laws and regulations governing the importation or prohibition against importation of certain materials including seditious or salacious materials as set forth at 19 U.S.C. 1305.
(b) Department authentications of a foreign certificate for entry under HTS Item No. 9817.00.4000 will be reflected by the issuance of an Importation Document. A copy of each Importation Document issued by the Department will be simultaneously furnished the United States Customs Service.
(c) Customs User Fee: Articles delivered by mail, which are eligible for duty-free entry under the regulations in this part are, additionally, not subjected to the standard Customs User Fee normally imposed by the United States Customs Service, provided there has been a timely filing with the appropriate United States Customs Service office of the documentation required by the regulations in this part.
§ 61.9 General information.
General information and application forms may be obtained by writing to the Attestation Office as follows: ECA/GCV – Attestation Officer, Department of State, 301 4th Street, SW., Washington, DC 20547; or calling (202) 475-0221.
PART 62 – EXCHANGE VISITOR PROGRAM
Subpart A – General Provisions
§ 62.1 Purpose.
(a) The regulations set forth in this part implement the Mutual Educational and Cultural Exchange Act of 1961 (the “Act”), as amended, Public Law 87-256, 22 U.S.C. 2451, et seq. (1988). The purpose of the Act is to increase mutual understanding between the people of the United States and the people of other countries by means of educational and cultural exchanges. Educational and cultural exchanges assist the Department of State in furthering the foreign policy objectives of the United States. These exchanges are defined by section 102 of the Act, 22 U.S.C. 2452, and section 101(a)(15)(J) of the Immigration and Nationality Act, as amended, 8 U.S.C. 1101(a)(15)(J).
(b) The Secretary of State of the Department of State facilitates activities specified in the Act, in part, by designating public and private entities to act as sponsors of the Exchange Visitor Program. Sponsors may act independently or with the assistance of third parties. The purpose of the Program is to provide foreign nationals with opportunities to participate in educational and cultural programs in the United States and return home to share their experiences, and to encourage Americans to participate in educational and cultural programs in other countries. Exchange visitors enter the United States on a J visa. The regulations set forth in this subpart are applicable to all sponsors.
(c) The Assistant Secretary for Educational and Cultural Affairs of the Department of State may, in his or her sole discretion and to the extent consistent with the authorities described in paragraph (a) of this section and other applicable law, waive or modify any provision of this part with respect to programs that are established pursuant to memoranda of understanding, letters of intent or similar arrangements between the United States and foreign governments. When establishing such a program, the Department will publish a notice in the
§ 62.2 Definitions.
The following definitions apply to this part:
Academic institution. Any publicly or privately operated primary, secondary, or post-secondary institution in the United States or abroad that offers primarily academic programs. For the purpose of these regulations, an institution that offers primarily vocational or technical programs is not an academic institution unless the specific program or programs in which the exchange visitor is to participate or has participated has been determined by the U.S. Department of State on an exceptional basis to be comparable to those offered in academic institutions.
Accompanying spouse and dependents. The alien spouse and/or minor unmarried child(ren), if any, of an exchange visitor who are accompanying or following to join the exchange visitor and who seek to enter or have entered the United States temporarily on non-immigrant J-2 visas or seek to acquire or have acquired such status after admission. For the purpose of these regulations, a minor is a person under the age of 21 years old.
Accredited academic institution. Any academic institution that is duly accredited by the appropriate academic accrediting authority of the U.S. jurisdiction in which such institution is located. In addition, all post-secondary institutions also must be accredited by a nationally recognized accrediting agency or association as recognized by the Secretary of Education.
Act. The Mutual Educational and Cultural Exchange Act of 1961, as amended.
Actual and current U.S. address. The physical, geographic location at which an exchange visitor and accompanying spouse and dependents reside while participating in an exchange program.
Alternate Responsible Officer. An employee or officer of a sponsor who has been nominated by the sponsor and approved by the Department of State to assist the Responsible Officer in carrying out the responsibilities outlined in § 62.11. An Alternate Responsible Officer must be a United States person.
Certificate of Good Standing. A document issued by a state Secretary of State, Secretary of Commonwealth, or other official in the state where the business entity is registered. A Certificate of Good Standing confirms that a corporation, partnership or other legal entity is in existence or authorized to transact business. A Certificate of Good Standing is also known as a Certificate of Authorization or a Certificate of Existence.
Clerical work. Routine administrative work generally performed in an office or office-like setting, such as data entry, filing, typing, mail sorting and distribution, and other general administrative or support tasks.
Consortium. A not-for-profit corporation, partnership, joint venture or other association formed by two or more accredited academic institutions for the purpose of sharing educational resources, conducting research, and/or developing new programs to enrich or expand the opportunities offered by its members. An academic institution in the United States that participates in a consortium is not barred from having separate exchange visitor program designations of its own.
Country of nationality or last legal permanent residence. Either the country of which the exchange visitor is a national at the time status as an exchange visitor is acquired or the last foreign country in which the visitor had a legal permanent residence before acquiring status as an exchange visitor.
Cross-cultural activity. An activity designed to promote exposure and interchange between exchange visitors and Americans so as to increase their mutual understanding of each other’s society, culture, and institutions.
Department of State. The U.S. Department of State.
Designation. The written authorization issued by the Department of State to an exchange visitor program applicant to conduct an exchange visitor program as a sponsor. The term includes the written authorization issued to a current sponsor that applies to continue its designation (i.e., redesignation).
Employee. An individual who provides services or labor for an employer for wages or other remuneration. A third party, as defined in this section, or an independent contractor, as defined in 8 CFR 274a.1(j), is not an employee.
Exchange visitor. A foreign national who has been selected by a sponsor to participate in an exchange visitor program, and who is seeking to enter or has entered the United States temporarily on a non-immigrant J-1 visa or who has obtained J status in the United States based on a Form DS-2019 issued by the sponsor. The term does not include the accompanying spouse and dependents of the exchange visitor.
Exchange Visitor Program. The international exchange program administered by the Department of State to implement the Act by means of educational and cultural exchange programs. When “exchange visitor program” is set forth in lower case, it refers to the individual program of a sponsor that has been designated by the Department of State.
Exchange visitor’s government. The government of the exchange visitor’s country of nationality or last legal permanent residence.
Financed directly. Financed in whole or in part by the U.S. Government or the exchange visitor’s government with funds contributed directly to the exchange visitor in connection with his or her participation in an exchange visitor program.
Form DS-2019, A Certificate of Eligibility for Exchange Visitor (J-Nonimmigrant) Status. A controlled document of the Department of State that a sponsor issues to a potential Exchange Visitor Program participant (J-1) and his or her accompanying spouse and dependents (J-2) as permitted by regulations. This form, together with other necessary Department of State documents, permits the named foreign national, if required, to schedule an interview at a U.S. embassy or consulate to seek to obtain a J visa to enter the United States as an Exchange Visitor Program participant or as an accompanying spouse and dependent.
Form DS-3036, Exchange Visitor Program Application. A controlled document of the Department of State that an organization uses to apply to become a designated sponsor of the Exchange Visitor Program and that a designated sponsor uses to request redesignation or amendment of an existing exchange visitor program.
Form DS-3037, Update of Information on a Sponsor’s Exchange Visitor Program. A controlled document of the Department of State that a sponsor uses to update information on its exchange visitor programs in SEVIS.
Form DS-3097, Annual Report. A controlled document of the Department of State in which a sponsor reports program activity and evaluation on a yearly basis.
Form DS-7002, Training/Internship Placement Plan (T/IPP). A controlled document of the Department of State used in connection only with a Trainee or Intern under 22 CFR § 62.22, or a Student Intern under § 62.23 respectively, to outline an exchange visitor’s program activities.
Full course of study. Full-time enrollment in an academic program of classroom participation and study and/or doctoral thesis research at an accredited academic institution as follows:
(1) Secondary school students must satisfy the attendance and course requirements of the state in which the school they attend is located; and
(2) College and university students must register for and complete a full course of study, as defined by the accredited academic institution in which the student is registered, unless exempted in accordance with § 62.23(e).
Graduate medical education or training. Participation in a program in which a foreign medical school graduate will receive graduate medical education or training, which generally consists of a residency or fellowship program involving health care services to patients, but does not include programs involving observation, consultation, teaching or research in which there is no or only incidental patient care. This program may consist of a medical specialty, a directly related medical subspecialty, or both.
Home-country physical presence requirement. The requirement that an exchange visitor, and any accompanying spouse and dependents, who are within the purview of section 212(e) of the Immigration and Nationality Act, as amended, or Public Law 94-484 (substantially quoted in 22 CFR 41.63), must reside and be physically present in the country of nationality or last legal permanent residence for an aggregate of at least two years following departure from the United States before the exchange visitor is eligible to apply for an immigrant visa or permanent residence, a non-immigrant K visa as the fiancé(e) of a U.S. citizen, a non-immigrant H visa as a temporary worker or trainee, or a non-immigrant L visa as an intracompany transferee, or a non-immigrant H or L visa as the spouse or minor child of a person who has been granted status in H or L non-immigrant classification as a temporary worker or trainee or an intracompany transferee.
Host organization. A third party in the United States that conducts training and/or internship programs on behalf of a designated sponsor pursuant to an executed written agreement between the two parties.
Internship program. A structured and guided work-based learning program for an Intern as set forth in an individualized Training/Internship Placement Plan (Form DS-7002) that reinforces an intern’s academic study; recognizes the need for work-based experience; provides on-the-job exposure to American techniques, methodologies, and technologies; and enhances the Intern’s knowledge of American culture and society.
J visa. A non-immigrant visa issued pursuant to 8 U.S.C. 1101(a)(15)(J). A J-1 visa is issued to an exchange visitor. A J-2 visa is issued to the exchange visitor’s accompanying spouse and dependents, if qualified under § 214b of the Immigration and Nationality Act, as amended.
Management review. A program-specific management audit in a format approved by the Department of State that is conducted by an independent auditor who is not an employee or third party contractor of the sponsor, to identify weaknesses in operating procedures in the conduct of an organization’s business and in meeting regulatory requirements in the administration of a sponsor’s exchange visitor program.
Office of Designation. The Department of State, Bureau of Educational and Cultural Affairs office assigned to administer designations of sponsors.
Office of Exchange Coordination and Compliance. The Department of State, Bureau of Educational and Cultural Affairs office assigned to oversee sponsor compliance with 22 CFR part 62 and, as appropriate, impose sanctions.
Office of Private Sector Exchange Administration. The Department of State, Bureau of Educational and Cultural Affairs office assigned to monitor administration of each sponsor’s exchange visitor program.
On-the-job training. An individual’s observation of and participation in given tasks demonstrated by experienced workers for the purpose of acquiring competency in such tasks.
Prescribed course of study. A non-degree academic program with a specific educational objective. Such course of study may include intensive English language training, classroom instruction, research projects, and/or academic training to the extent permitted in § 62.23.
Reciprocity. The participation of a U.S. citizen or U.S. national in an educational and cultural program in a foreign country in exchange for the participation of a foreign national in the Exchange Visitor Program. Where used herein, “reciprocity” will be interpreted broadly; unless otherwise specified, reciprocity does not require a one-for-one exchange or that exchange visitors be engaged in the same activity.
Responsible Officer. An employee or officer of a sponsor who has been nominated by the sponsor, and approved by the Department of State, to carry out the duties outlined in § 62.11. A Responsible Officer must be a citizen of the United States or a lawful permanent resident of the United States.
Secretary of State. The Secretary of State or an employee of the U.S. Department of State acting under a delegation of authority from the Secretary of State.
SEVIS (Student and Exchange Visitor Information System). The statutorily mandated system designed to collect information on non-immigrant students (F and M visas), exchange visitors (J visas), and their spouses and dependents (F-2, M-2, and J-2 visas). SEVIS enables schools and program sponsors to transmit information and event notifications electronically, via the Internet, to the Department of Homeland Security and the Department of State throughout a student’s or exchange visitor’s stay in the United States.
Site of activity. The physical, geographic location(s) where an exchange visitor participates in his or her exchange program.
Sponsor. A legal entity designated by the Secretary of State to conduct an exchange visitor program.
Staffing/employment agency. A U.S. business that hires individuals for the express purpose of supplying workers to other businesses. Typically, the other businesses where workers are placed pay an hourly fee per employee to the staffing/employment agency, of which the worker receives a percentage.
Student internship program. A structured and guided work-based learning program for a post-secondary student intern as set forth in an individualized Training/Internship Placement Plan (Form DS-7002) that partially or fully fulfills a student’s post-secondary academic degree requirements; recognizes the need for work-based experience; provides on-the-job exposure to American techniques, methodologies, and technologies; and enhances the student intern’s knowledge of American culture and society.
Third party. A person or legal entity with whom a sponsor has executed a written agreement for the person or entity to act on behalf of a sponsor in the conduct of the sponsor’s exchange visitor program. All entities that act on behalf of the sponsor in the conduct of the sponsor’s exchange visitor program must execute written agreements with the sponsor that outline the full relationship between the entity and the sponsor on all matters involving the administration of the exchange visitor program. A sponsor’s use of a third party does not relieve the sponsor of its obligations to comply, and to ensure third party compliance, with the provisions of this part. Failure by any third party to comply with the regulations set forth in this part or with any additional terms and conditions governing administration of the Exchange Visitor Program that the Department of State may from time to time impose will be imputed to the sponsor. Sponsors are required to ensure that third parties know and comply with all applicable provisions of these regulations.
Training program. A structured and guided work-based learning program for a trainee as set forth in an individualized Training/Internship Placement Plan (Form DS-7002), that develops new and advanced skills in a trainee’s occupational field through exposure to American techniques, methodologies, and technologies; and enhances a trainee’s understanding of American culture and society.
United States person (individual). A person who is born within or is a national of the United States or any of its territories or outlying possessions. A U.S. person is a citizen or an individual who has been lawfully admitted for permanent residence, within the meaning of section 101(a)(20) of the Immigration and Nationality Act (8 U.S.C. 1101).
United States Person (legal entity).
(1) A general or limited partnership created or organized under the laws of the United States, or of any state, the District of Columbia, or any territory or outlying possession of the United States, of which a majority of the partners are United States persons:
(i) Which has its principal place of business in the United States; and
(ii) In instances where the partnership is additionally governed by a Board, the majority of whose officers are United States persons.
(2) A for-profit corporation, association, or other legal entity created or organized under the laws of the United States, or of any state, the District of Columbia, or a territory or outlying possession of the United States, whose principal place of business is located in the United States, and
(i) Whose shares or voting interests are publicly traded on a U.S. stock exchange; or
(ii) A majority of whose officers, a majority of whose shareholders, and a majority of whose members of its Board of Directors are United States persons and collectively hold a majority of the shares or stock (i.e., the de jure controlling interest); or
(3) A non-profit corporation, association, or other legal entity created or organized under the laws of the United States, or any state, the District of Columbia, or any territory or outlying possession of the United States; and
(i) Whose principal place of business is located in the United States; and
(ii) A majority of whose officers and a majority of whose members of its Board of Directors, Board of Trustees or other like body vested with its management are United States persons; or
(4) An accredited college, university, or other post-secondary academic institution in the United States created or organized under the laws of the United States, or of any state, county, municipality, or other political subdivision thereof, the District of Columbia, or of any territory or outlying possession of the United States; or
(5) An agency of the United States, or of any state or local government, the District of Columbia, or any territory or outlying possession of the United States.
Validation. The process by which a Responsible Officer or Alternate Responsible Officer updates the SEVIS record of an exchange visitor to show he or she has entered the United States, and that the exchange visitor reported to his or her sponsor and is participating in the exchange visitor program at the site of activity identified on his or her Form DS-2019.
§ 62.3 Sponsor eligibility.
(a) The following types of entities are eligible to apply for designation as a sponsor of an exchange visitor program:
(1) U.S. local, state, and federal government agencies to include the District of Columbia; and government agencies of any U.S. territories and outlying possessions;
(2) International agencies or organizations of which the United States is a member and that have an office in the United States; or
(3) Reputable organizations that are United States Persons.
(b) To be eligible for designation as a sponsor, an entity is required to:
(1) Demonstrate, to the Department of State’s satisfaction, its ability to comply and remain in continual compliance with all applicable provisions of this part;
(2) Meet at all times its financial obligations and responsibilities attendant to successful sponsorship of its exchange visitor program; and
(3) Demonstrate that the organization or its proposed Responsible Officer has no fewer than three years’ experience in international exchange.
§ 62.4 Categories of participant eligibility.
Sponsors select foreign nationals to participate in exchange visitor program(s) in the United States. Participation is limited to foreign nationals who meet the following criteria for each of the following categories:
(a) Student. A foreign national who is:
(1) Studying in the United States and:
(i) Pursuing a full course of study at a secondary accredited academic institution;
(ii) Pursuing a full course of study leading to or culminating in the award of a U.S. degree from a post-secondary accredited academic institution; or
(iii) Engaged full-time in a prescribed course of study of up to 24 months (non-degree) duration conducted by:
(A) A post-secondary accredited academic institution; or
(B) An institute approved by or acceptable to the post-secondary accredited academic institution, where the student is to be enrolled upon completion of the non-degree program;
(2) Engaged in academic training as permitted in § 62.23(f);
(3) Engaged in English language training at:
(i) A post-secondary accredited academic institution, or
(ii) An institute approved by or acceptable to the post-secondary accredited academic institution where the college or university student is to be enrolled upon completion of the language training; or
(4) Engaged full-time in a student internship program conducted by a post-secondary accredited academic institution.
(b) Short-term scholar. A foreign national who is a professor, research scholar, or person with similar education or accomplishments who enters the United States for a short-term visit for the purpose of lecturing, observing, consulting, training, or demonstrating special skills at research institutions, museums, libraries, post-secondary accredited academic institutions, or similar types of institutions.
(c) Trainee. A foreign national participating in a structured and guided work-based training program in his or her specific occupational field (in an occupational category for which a sponsor has obtained designation) who has either:
(1) A degree or professional certificate from a foreign ministerially-recognized post-secondary academic institution and at least one year of prior related work experience in his or her occupational field acquired outside the United States; or
(2) Five years of work experience in his or her occupational field acquired outside the United States.
(d) Teacher. A foreign national with the equivalent of a U.S. Bachelor’s degree in either education or the subject matter (or related subjects) he or she intends to teach and a minimum of the equivalent of two years of post-degree full-time teaching experience, who is employed as a teacher at the time of application for the program, for the purpose of teaching full-time in a primary or secondary accredited academic institution.
(e) Professor. A foreign national whose primary purpose is teaching, lecturing, observing, or consulting at post-secondary accredited academic institutions, museums, libraries, or similar types of institutions. A professor also may conduct research where authorized by the sponsor.
(f) Research scholar. A foreign national whose primary purpose is conducting research, observing, or consulting in connection with a research project at research institutions, corporate research facilities, museums, libraries, post-secondary accredited academic institutions, or similar types of institutions. A research scholar also may teach or lecture where authorized by the sponsor.
(g) Specialist. A foreign national who is an expert in a field of specialized knowledge or skills who enters the United States for the purpose of observing, consulting, or demonstrating special knowledge or skills.
(h) Other person of similar description. A foreign national of description similar to those set forth in paragraphs (a) through (g) of this section coming to the United States as a participant in an exchange visitor program designated by the Department of State under this category, for the purpose of teaching, instructing or lecturing, studying, observing, conducting research, consulting, demonstrating special skills, or receiving training. The programs designated by the Department of State in this category consist of:
(1) Alien physician. A foreign national who is a graduate of a school of medicine who comes to the United States under a program in which he or she will receive graduate medical education or training conducted by accredited U.S. schools of medicine or scientific institutions.
(2) International visitor. A foreign national who is a recognized or potential leader, selected by the Department of State for the purpose of consulting, observing, conducting research, training, or demonstrating special skills in the United States.
(3) Government visitor. A foreign national who is an influential or distinguished person, selected by a U.S. federal, state, or local government agency for the purpose of consulting, observing, training, or demonstrating special skills in the United States.
(4) Camp counselor. A foreign national selected to be a counselor in a summer camp in the United States (e.g., during the U.S. summer months).
(5) Au pair. A foreign national who comes to the United States for the purpose of residing with an American host family and participating directly in their home life, while providing limited childcare services, and fulfilling an educational requirement.
(6) Summer Work and Travel. A foreign national who is a bona fide foreign post-secondary student, who at the time of application is enrolled in and actively pursuing a degree or a full-time course of study at a foreign ministerially-recognized post-secondary academic institution and whose purpose is work and travel in the United States for up to four months during his or her break between academic years.
(7) Intern. A foreign national participating in a structured and guided work-based internship program in his or her specific academic field and who either:
(i) Is currently enrolled full-time in and actively pursuing studies at a foreign ministerially-recognized degree- or certificate-granting post-secondary academic institution outside the United States, or
(ii) Graduated from such an institution no more than 12 months prior to the exchange visitor program begin date reflected on Form DS-2019.
§ 62.5 Designation application procedure.
(a) An entity meeting the eligibility requirements set forth in § 62.3 may apply to the Department of State for designation as an Exchange Visitor Program sponsor. An applicant must first complete and submit Form DS-3036 in SEVIS. The complete application must consist of:
(1) A completed copy of Form DS-3036 signed by the applicant’s Chief Executive Officer, President, or other executive with legal authority to make commitments on behalf of the sponsor (as identified in the organization’s governing documents);
(2) Required supporting documentation and certifications as set forth in paragraph (c); and
(3) Confirmation of payment of the required non-refundable application fee through pay.gov as set forth in § 62.17.
(b) A complete application must set forth, in detail, the applicant’s proposed exchange program activity and must demonstrate, to the Department of State’s satisfaction, the applicant’s ability to comply and remain in continual compliance with all the provisions of this part, and, in particular, to meet the sponsor eligibility requirements set forth in § 62.3 and the general obligations of sponsors set forth in § 62.9.
(c) An application must be accompanied by the following supporting documentation and certifications, as relevant:
(1) Evidence of sponsor eligibility as set forth in § 62.3(a), including evidence of legal status (e.g., charter, proof of incorporation, by laws, partnership agreement);
(2) Evidence of experience in operating a successful business, including a minimum of three years of experience in international exchange by the organization or by the proposed Responsible Officer;
(3) Evidence of the applicant’s ability to meet at all times its financial obligations and responsibilities attendant to successful sponsorship of its exchange visitor program, and evidence that it can comply with § 62.9(e) and provide any supplemental or explanatory financial information the Department of State may request. In addition:
(i) An established entity must present a current audit report with audit notes prepared by an independent certified public accounting firm.
(ii) A newly formed entity must present a compilation (i.e., a balance sheet, statement of cash flows and all disclosures, revenues, expenditures, and notes to financial statements) prepared by an independent certified public accounting firm demonstrating that the entity has been capitalized with sufficient funds to cover general operating expenses and costs associated with an exchange program.
(4) A current Certificate of Good Standing (see § 62.2);
(5) An Employer Identification Number (EIN), which specifies the date of issuance;
(6) Evidence of current accreditation if the applicant is a secondary or post-secondary academic institution;
(7) Evidence of current licensure, if required by local, state, or federal law, to carry out the activity for which the applicant is seeking designation;
(8) A statement signed by the Chief Executive Officer, President, or other executive with legal authority to make commitments on behalf of the sponsor (as identified in the organization’s governing documents), certifying that:
(i) The applicant is a United States Person as defined in § 62.2;
(ii) The proposed Responsible Officer and all proposed Alternate Responsible Officers are United States citizens or lawful permanent residents of the United States;
(iii) The sponsor has completed a criminal background check on the potential Responsible Officer and all Alternate Responsible Officers, and has determined their suitability for these positions; the criminal background checks must be no older than four years at any time for re-designated sponsors and must be newly conducted as part of the designation application for new sponsors and the redesignation application for sponsors designated for only one year; and
(iv) The Responsible Officer will be provided sufficient staff and resources to fulfill his or her duties and obligations on behalf of the applicant;
(9) A completed SEVIS-generated Citizenship Certification for the proposed Responsible Officer and all proposed Alternate Responsible Officer(s) along with evidence that they are citizens of the United States or lawful permanent residents (e.g., copy of passport, birth certificate, green card); and
(10) Such additional information or documentation that the Department of State may deem necessary to evaluate the application. In addition, the Department may decide, in its discretion, to conduct a pre-designation site visit of a first-time applicant.
§ 62.6 Designation.
(a) Upon its favorable determination that an applicant meets all statutory and regulatory requirements, the Department of State may, in its sole discretion, designate the applicant as an Exchange Visitor Program sponsor.
(b) Initial designations are effective for one or two years at the sole discretion of the Department of State.
(c) Designation will confer upon a sponsor the authority to engage in one or more activities specified in § 62.4. A sponsor may engage only in the activity or activities specifically authorized in its written letter of designation.
(d) The Department of State may, in its sole discretion, require a sponsor to secure a payment bond in favor of the Department of State guaranteeing the sponsor’s obligations hereunder.
(e) Designations are not transferable or assignable.
§ 62.7 Redesignation.
(a) Sponsors must file for redesignation no more than six months and no fewer than three months before the designation expiration date as set forth in the sponsor’s letter of designation or its most recent letter of redesignation.
(b) A sponsor seeking redesignation as an Exchange Visitor Program sponsor must first complete and submit Form DS-3036 in SEVIS. The complete application must consist of:
(1) A completed copy of Form DS-3036, signed by the sponsor’s Chief Financial Officer, President or other executive with legal authority to make commitments on behalf of the sponsor (as identified in the organization’s governing documents);
(2) Required supporting documentation and certifications as set forth in paragraph (c); and
(3) Confirmation of payment of the required non-refundable application fee through pay.gov as set forth in § 62.17.
(c) The complete application must include the following supporting documentation and certifications:
(1) A copy of the most recent year-end financial statements;
(2) A copy of the most recent letter of accreditation if the sponsor is a secondary or post-secondary academic institution;
(3) A list of the names, addresses and citizenship or legal permanent resident status of the current members of its Board of Directors or the Board of Trustees or other like body, vested with the management of the organization or partnership, and/or the percentage of stocks/shares held, as applicable;
(4) For a non-profit organization, a signed copy of the sponsor’s most recent Form 990 filed with the Internal Revenue Service;
(5) A statement signed by the Chief Executive Officer, President, or other executive with legal authority to make commitments on behalf of the sponsor (as identified in the organization’s governing documents) certifying that the sponsor has completed timely criminal background checks since the date of the last designation or redesignation letter on the Responsible Officer and all Alternate Responsible Officers and has determined their suitability for these positions; and
(6) Such additional information or documentation that the Department of State may deem necessary to evaluate the application.
(d) Upon its favorable determination that a sponsor meets all statutory and regulatory requirements, the Department of State may, in its sole discretion, redesignate the organization as an Exchange Visitor Program sponsor for one or two years. A sponsor seeking re-designation may continue to operate its program(s) until such time as the Department of State notifies it of a decision to approve, amend or terminate its designation.
§ 62.8 General program requirements.
(a) Size of program. A sponsor, other than a federal government agency, must have no fewer than five actively participating exchange visitors during the annual reporting cycle (e.g., academic, calendar or fiscal year), as stated in its letter of designation or redesignation. The Department of State may, in its sole discretion, waive this requirement.
(b) Minimum duration of program. A sponsor, other than a federal government agency, must provide each exchange visitor, except those sponsored in the short-term scholar category, with a minimum period of participation in the United States of no less than three weeks.
(c) Reciprocity. In conducting its exchange visitor program, sponsors must make a good faith effort to develop and implement, to the fullest extent possible, reciprocal exchanges of persons.
(d) Cross-cultural activities. In addition to category specific requirements, sponsors must:
(1) Offer or make available to exchange visitors and the accompanying spouses and dependents, if any, a variety of appropriate cross-cultural activities. The extent and type of the cross-cultural activities will be determined by the needs and interests of the particular category of exchange visitor. Sponsors will be responsible for determining the appropriate types and numbers of such cross-cultural programs, unless otherwise specified by the Department. The Department of State encourages sponsors to give their exchange visitors the broadest exposure to American society, culture and institutions; and
(2) Encourage exchange visitors to participate voluntarily in activities that are for the purpose of sharing the language, culture, or history of their home country with Americans, provided such activities do not delay the completion of the exchange visitors’ program.
§ 62.9 General obligations of sponsors.
(a) Adherence to Department of State regulations. Sponsors are required to adhere to all regulations set forth in this part.
(b) Legal status. A sponsor must maintain the legal status it had when it was designated. A sponsor’s change in legal status (e.g., from partnership to corporation, non-profit to for-profit) requires the submission of a new application for designation of the successor legal entity within 45 days of the change in legal status.
(c) Accreditation and licensure. A sponsor must remain in compliance with all local, state, and federal laws, and professional requirements necessary to carry out the activities for which it is designated, including accreditation and licensure, if applicable.
(d) Representations and disclosures. Sponsors must:
(1) Provide accurate, complete, and timely information, to the extent lawfully permitted, to the Department of State and the Department of Homeland Security regarding their exchange visitor program(s), exchange visitors, and accompanying spouses and dependents (if any);
(2) Provide accurate information to the public when advertising their exchange visitor program(s) or responding to public inquiries;
(3) Provide accurate program information and materials to prospective exchange visitors, host organizations, and host employers, if applicable, at the time of recruitment and before exchange visitors enter into agreements and/or pay non-refundable fees. This information must clearly explain program activities and terms and conditions of program, including the terms and conditions of any employment activities (job duties, number of work hours, wages and compensation, and any typical deductions for housing and transportation), have itemized list of all fees charged to the exchange visitor (i.e., fees paid to the sponsor or a third party, including the host employer), insurance costs, other typical costs, conditions, and restrictions of the exchange visitor program(s), and the type, duration, nature and importance of the cultural components of the program. Program recruitment information and materials also must make clear to prospective exchange visitors in the exchange categories with a work component that their stipend or wages might not cover all of their expenses and that they should bring additional personal funds.
(4) Not use the program number(s) assigned by the Department of State at the time of designation on any advertising materials or publications, including sponsor Web sites; and
(5) Not represent that its exchange visitor program is endorsed, sponsored, or supported by the Department of State or the U.S. Government, except for U.S. Government sponsors or exchange visitor programs financed directly by the U.S. Government to promote international educational exchanges. A sponsor may, however, represent that it is designated by the Department of State as a sponsor of an exchange visitor program.
(e) Financial responsibility. (1) Sponsors must maintain the financial capability to meet at all times their financial obligations and responsibilities attendant to successful sponsorship of their exchange visitor program.
(2) The Department of State may require non-government sponsors to provide evidence satisfactory to the Department of State that funds necessary to fulfill all obligations and responsibilities attendant to sponsorship of their exchange visitor programs are readily available and in the sponsor’s control, including such supplementary or explanatory financial information as the Department of State may deem appropriate, such as, for example, audited financial statements.
(3) The Department of State may require a non-government sponsor to secure payment bonds in favor of the Department of State guaranteeing all financial obligations arising from its exchange visitor program when the Department has reasonable doubt about the sponsor’s ability to meet its program and other financial obligations.
(f) Staffing and support services. Sponsors must ensure that:
(1) Adequate staffing and sufficient support services are provided to administer their exchange visitor program; and
(2) Their employees, officers, agents, third parties, volunteers or other individuals or entities associated with the administration of their exchange visitor program are adequately qualified, appropriately trained, and comply with the Exchange Visitor Program regulations and immigration laws pertaining to the administration of their exchange visitor program(s).
(g) Appointment of Responsible Officers and Alternate Responsible Officers. (1) Sponsors must appoint and maintain a Responsible Officer and between one and ten Alternate Responsible Officers to assist the Responsible Officer in performing the duties set forth in § 62.11. Upon written sponsor request, the Department of State may, in its sole discretion, permit a sponsor to appoint more than ten Alternate Responsible Officers. A sponsor redesignated for two years must ensure that the proposed Responsible Officer and Alternate Responsible Officer(s) have undergone a criminal background check within the past four years to determine their suitability for these positions. Responsible Officers and Alternate Responsible Officers must be U.S. persons.
(2) Responsible Officers and Alternate Responsible Officers must be employees or officers of the sponsor. Upon written sponsor request, the Department of State may, in its sole discretion, authorize the appointment of an individual who is not an employee or officer to serve as an Alternate Responsible Officer.
(3) In the event of the departure of a Responsible Officer or Alternate Responsible Officer, the sponsor must file a request in SEVIS for the approval of a replacement and forward the required documentation to the Department of State within ten calendar days from the date of the Responsible Officer’s or Alternate Responsible Officer’s departure.
(4) Requests to replace the Responsible Officer or add an Alternate Responsible Officer must be submitted in SEVIS, and a signed Form DS-3037 must be either mailed or emailed to the Department of State with the required completed Citizenship Certification, along with certification that the individual has undergone a criminal background check conducted at the time of such Certification.
(5) The Department of State reserves the right to deny the appointment of a Responsible Officer or an Alternate Responsible Officer.
§ 62.10 Program administration.
Sponsors are responsible for the effective administration of their exchange visitor program(s). These responsibilities include:
(a) Selection of exchange visitors. Sponsors must establish and utilize a method to screen and select prospective exchange visitors to ensure that they are eligible for program participation, and that:
(1) The program is suitable to the exchange visitor’s background, needs, and experience; and
(2) The exchange visitor possesses sufficient proficiency in the English language, as determined by an objective measurement of English language proficiency, successfully to participate in his or her program and to function on a day-to-day basis. A sponsor must verify an applicant’s English language proficiency through a recognized English language test, by signed documentation from an academic institution or English language school, or through a documented interview conducted by the sponsor either in-person or by videoconferencing, or by telephone if videoconferencing is not a viable option.
(b) Pre-arrival information. At the pre-arrival stage, sponsors must provide exchange visitors clear information and materials on, but not limited to, the following topics: Program activities, cultural goals and components of the program, employment information and terms and conditions of employment (including employer name and address, position duration, job duties, number of work hours, wages, other compensation and benefits, deductions from wages, including those taken for housing and transportation), insurance costs, and other conditions and restrictions of their exchange visitor. In addition, sponsors must provide clear information and materials on:
(1) The purpose of the Exchange Visitor Program;
(2) The home-country physical presence requirement;
(3) Travel to and entry into the United States (e.g., procedures to be followed by exchange visitors and accompanying spouses and dependents in paying SEVIS fees and obtaining visas for entry to the United States, including the information and documentation needed for the interview; travel arrangements to the United States, and what to expect at the port of entry, including the necessity of having and presenting travel documents at the port of entry);
(4) Housing, including specific information on what housing is provided by the program or otherwise available and the expected cost to the exchange visitor;
(5) An itemized list of all fees to be paid by a potential exchange visitor (i.e., fees paid to the sponsor or a third party);
(6) Description and amount of other costs that the exchange visitor will likely incur (e.g., insurance, living expenses, transportation expenses) while in the United States;
(7) Health care and insurance description, costs, and requirements for exchange visitors and their accompanying spouse and dependents, as applicable;
(8) Arrival notification requirements (e.g., procedures that exchange visitors, spouses and dependents are to follow upon entry into the United States in reporting their arrival to the sponsor and reporting to the location of their program); and
(9) Other information that will assist exchange visitors to prepare for their stay in the United States (e.g., how and when to apply for a social security number, if applicable; how to apply for a driver’s license; how to open a bank account; employee rights and laws, including workman’s compensation; and how to remain in lawful non-immigrant status.
(c) Orientation. A sponsor must offer and record participation in an appropriate orientation for all exchange visitors. Sponsors are encouraged to provide orientation for the exchange visitor’s accompanying spouse and dependents, especially for those exchange visitors who are expected to be in the United States for more than one year. Orientation must include, but is not limited to, information concerning:
(1) Life and customs in the United States;
(2) Local community resources (e.g., public transportation, medical centers, schools, libraries, recreation centers, and banks), to the fullest extent possible;
(3) Available healthcare, emergency assistance, and health insurance coverage;
(4) A description of the exchange visitor program in which the exchange visitor is participating such as information on the length and location of the program; a summary of the significant components of the program; information on any payment (i.e., stipend or wage) an exchange visitor will receive; and deductions from wages, including for housing and transportation;
(5) Sponsor rules that exchange visitors are required to follow while participating in their exchange visitor program;
(6) Name and address of the sponsor and the name, email address, and telephone number of the Responsible Officer and Alternate Responsible Officer(s);
(7) The Office of Designation’s address, telephone number, facsimile number, Web site and email address, and a copy of the Exchange Visitor Program brochure or other Department of State materials as appropriate or required;
(8) Wilberforce Pamphlet on the Rights and Protections for Temporary Workers; and
(9) The requirement that an exchange visitor must report to the sponsor or sponsor designee within ten calendar days any changes in his or her telephone number, email address, actual and current U.S. address (i.e., physical residence), and site of activity (if the exchange visitor is permitted to make such change without prior sponsor authorization).
(d) Monitoring of exchange visitors. Exchange visitors’ participation in their exchange program must be monitored by employees of the sponsor. Monitoring activities must not include any retaliation or discrimination against exchange visitors who make adverse comments related to the program. No sponsor or employee of a sponsor may threaten program termination, remove from the program, ban from the program, adversely annotate an exchange visitor’s SEVIS record, or otherwise retaliate against an exchange visitor solely because he/she has filed a complaint; instituted or caused to be instituted any proceeding; testified or is about to testify; consulted with an advocacy organization, community organization, legal assistance program or attorney about a grievance or other work-related legal matter; or exercised or asserted on behalf of himself/herself any right or protection. Sponsors must:
(1) Ensure that the activities in which exchange visitors are engaged are consistent with the category and activity listed on their Forms DS-2019;
(2) Monitor the physical location (site of activity), and the progress and welfare of exchange visitors to the extent appropriate for the category;
(3) Require that exchange visitors report to the sponsor within ten calendar days any changes in their telephone numbers, email addresses, actual and current U.S. addresses (i.e., physical residence), and site(s) of activity (if the exchange visitor is permitted to make such change without prior sponsor authorization);
(4) Report in SEVIS within ten business days of notification by an exchange visitor any change in the exchange visitor’s actual and current U.S. address, telephone number, email address, and/or primary site of activity; and
(5) Report the email address for each accompanying spouse and dependent.
(e) Requests by the Department of State. Sponsors must, to the extent lawfully permitted, furnish the Department of State within the Department-requested timeframe all information, reports, documents, books, files, and other records or information requested by the Department of State on all matters related to their exchange visitor program. Sponsors must include sponsor’s program number on all responses.
(f) Inquiries and investigations. Sponsors must cooperate with any inquiry or investigation that may be undertaken by the Department of State or the Department of Homeland Security.
(g) Retention of records. Sponsors must retain all records related to their exchange visitor program and exchange visitors (to include accompanying spouse and dependents, if any) for a minimum of three years following the completion of each exchange visitor program.
§ 62.11 Duties of Responsible Officers and Alternate Responsible Officers.
Responsible Officers must train and supervise Alternate Responsible Officers and ensure that these officials are in compliance with the Exchange Visitor Program regulations. Responsible Officers and Alternate Responsible Officers must:
(a) Be thoroughly familiar with the Exchange Visitor Program regulations, relevant immigration laws, and all federal and state regulations and laws pertaining to the administration of their exchange visitor program(s), including the Department of State’s and the Department of Homeland Security’s policies, manuals, instructions, and guidance on SEVIS and all other operations relevant to the Exchange Visitor Program; if Responsible Officers and Alternate Responsible Officers work with programs with an employment component, they also must have a detailed knowledge of federal, state, and local laws pertaining to employment, including the Fair Labor Standards Act;
(b) Monitor that the exchange visitor obtains sufficient advice and assistance to facilitate the successful completion of his or her exchange visitor program;
(c) Conduct all official communications relating to their sponsor’s exchange visitor program with the Department of State and the Department of Homeland Security. A sponsor must include its exchange visitor program number on all correspondence submitted to the Department of State and to the Department of Homeland Security;
(d) Monitor to ensure that that sponsor spam filters do not block receipt of SEVIS or Department of State and Department of Homeland Security notices; and
(e) Control and issue Forms DS-2019 as set forth in § 62.12.
§ 62.12 Control of Forms DS-2019.
(a) Issuance of Forms DS-2019. Sponsors must:
(1) Grant access only to Responsible Officers and Alternate Responsible Officers and ensure that they have access to and use SEVIS to update required information;
(2) Ensure that Responsible Officers and Alternate Responsible Officers input into SEVIS accurate, current, and updated information in accordance with these regulations; and
(3) Issue Forms DS-2019 only for the following authorized purposes:
(i) To facilitate the initial entry of the exchange visitor and accompanying spouse and dependents, if any, into the United States;
(ii) To extend the duration of participation of an exchange visitor, when permitted by the regulations and authorized by the Department of State;
(iii) To facilitate program transfers, when permitted by the regulations and/or authorized in writing by the Department of State;
(iv) To replace lost, stolen, or damaged Forms DS-2019;
(v) To facilitate the re-entry into the United States of an exchange visitor and accompanying spouse and dependents, if any, who travel outside the United States during the exchange visitor’s program;
(vi) To facilitate a change of category, when requested in SEVIS and authorized by the Department of State;
(vii) To update information when significant changes take place in regard to the exchange visitor’s program (e.g., a substantial change in funding, a change in the primary site of activity or a change in actual and current U.S. address);
(viii) To facilitate the correction of a minor or technical infraction; or
(ix) To facilitate a “reinstatement” or a “reinstatement update SEVIS status” when permitted by the Department of State.
(b) Verification. (1) Prior to issuing Forms DS-2019, sponsors must verify that each prospective exchange visitor:
(i) Is eligible and qualified for, and accepted into, the program in which he or she will participate;
(ii) Possesses adequate financial resources to participate in and complete his or her exchange visitor program; and
(iii) Possesses adequate financial resources to support an accompanying spouse and dependents, if any.
(2) Sponsors must ensure that:
(i) Only Responsible Officers or Alternate Responsible Officers who are physically present in the United States or in a U.S. territory may print and sign Forms DS-2019; and
(ii) Only the Responsible Officer or the Alternate Responsible Officer, whose name is printed on the Form DS-2019, is permitted to sign the document. The Form DS-2019 must be signed in blue ink to denote that it is the original document.
(c) Distribution of Forms DS-2019. Sponsors must ensure that completed Forms DS-2019 are distributed directly to the exchange visitor and accompanying spouse and dependents, if any, or to an individual designated by the exchange visitor only via the sponsor’s employees, officers, or third parties in the administration of its exchange visitor program.
(d) Allotment requests. (1) Annual Form DS-2019 allotment. Sponsors must submit an electronic request via SEVIS to the Department of State for an annual allotment of Forms DS-2019 based on the annual reporting cycle (e.g., academic, calendar or fiscal year) stated in their letter of designation or redesignation. Sponsors should allow up to four weeks for the processing of allotment requests. The Department of State has the sole discretion to determine the number of Forms DS-2019 to be issued to a sponsor.
(2) Expansion of Program. A request for program expansion must include information such as, but not limited to, the source of program growth, staff increases, confirmation of adequately trained employees, noted programmatic successes, current financial information, additional overseas affiliates, additional third party entities, explanations of how the sponsor will accommodate the anticipated program growth, and any other information requested by the Department. The Department of State will take into consideration the current size of a sponsor’s program and the projected expansion of the program in the coming 12 months and may consult with the Responsible Officer and/or Alternate Responsible Officer prior to determining the number of Forms DS-2019 to issue to a sponsor.
(e) Safeguards and controls. (1) Responsible Officers and Alternate Responsible Officers must secure their SEVIS logon Identification Numbers (IDs) and passwords at all times (i.e., not share IDs and passwords with any other person or permit access to and use of SEVIS by any other person).
(2) Sponsors, their employees, officers, agents, or other third parties acting on behalf of the sponsor, may not forward to any unauthorized party (via facsimile or other electronic means) copies or Portable Document Formats (PDFs) of signed or unsigned Forms DS-2019. However, sponsors must forward such copies and/or PDFs to the Department of State or the Department of Homeland Security upon request.
(3) Sponsors must use the reprint function in SEVIS in the event the exchange visitor’s Form DS-2019 has been lost or stolen.
(4) Sponsors must destroy any damaged and/or unusable Form DS-2019 on the sponsor’s premises after making a record of such forms (e.g., forms with errors or forms damaged by a printer).
§ 62.13 Notification requirements.
(a) Valid program status of exchange visitor. Sponsors must notify the Department of State via SEVIS of the following:
(1) Validation of program participation. Sponsors must promptly validate an exchange visitor’s participation in their program. This will change the status of the exchange visitor’s SEVIS record from “Initial” to “Active.” SEVIS records with program durations (e.g., the period between the “Program Begin Date” and “Program End Date”) of 30 days or more must be validated within 30 days following the “Program Begin Date” identified in SEVIS. SEVIS records with program durations that are less than 30 days must be validated prior to the “Program End Date” reflected in SEVIS. As part of the validation process, sponsors may amend the program begin date and must update the SEVIS record to reflect the actual and current U.S. address and site of activity in SEVIS. The status of SEVIS records that are not validated according to this schedule will automatically change to “Invalid” or “No Show”. Accompanying spouses and dependents’ SEVIS records are automatically validated upon validation of the exchange visitors’ SEVIS records.
(2) Failure of an exchange visitor to begin program. Sponsors must report in SEVIS, no later than 30 calendar days after the “Program Begin Date” listed in SEVIS, the failure of an exchange visitor to report to his or her sponsor upon entry in the United States (i.e., failure of exchange visitor to begin an exchange visitor program as scheduled). This will change the status of the exchange visitor’s SEVIS record from “Initial” to “No Show.”
(3) End of an exchange visitor’s program. Sponsors must report in SEVIS any withdrawal from or early completion of an exchange visitor’s program that occurs prior to the “Program End Date” listed in SEVIS on the exchange visitor’s Form DS-2019. Sponsors must not alter the “Program End Date” field, but should enter the date of program completion in the “Effective Date of Completion” field. This will change the status of the exchange visitor’s SEVIS record from “Active” to “Inactive.” Such notification in SEVIS ends a sponsor’s programmatic obligations to the exchange visitor and/or his or her accompanying spouse and dependents.
(4) Accompanying spouse and dependent records. Sponsors must report in SEVIS if accompanying spouses and/or dependents depart from the United States prior to the exchange visitors’ departure dates.
(5) Termination of an exchange visitor’s program. Sponsors must promptly report in SEVIS the involuntary termination of an exchange visitor’s program. Sponsors must not alter the “Program End Date” field, but should enter the date of program termination in the “Effective Date of Termination” field. This will change the status of the SEVIS record from “Active” to “Terminated”. Such notification in SEVIS ends a sponsor’s programmatic obligation to the exchange visitor and his or her accompanying spouse and dependents, if any, and prevents the sponsor from thereafter extending the exchange visitor’s duration of participation, transferring the exchange visitor to another program, or changing the exchange visitor’s category. Sponsors must not terminate the program of an exchange visitor who voluntarily ends his or her program.
(b) Change of circumstance of an exchange visitor. Sponsors must promptly notify the Department of State via SEVIS of any of the following circumstances:
(1) Change in the actual and current U.S. address. Sponsors must ensure that the actual and current U.S. addresses of an exchange visitor are reported in SEVIS:
(i) Sponsors must report the U.S. mailing address (i.e., provide a P.O. Box number) in SEVIS in those limited cases where mail cannot be delivered to the exchange visitor’s actual and current U.S. address (e.g., the exchange visitor resides in a campus setting); and
(ii) If a U.S. mailing address is reported to SEVIS, sponsors must also maintain records in SEVIS of actual and current U.S. addresses (e.g., dormitory, building and room number) for such exchange visitors.
(2) Change in site of activity. Sponsors must report in SEVIS any change to an exchange visitor’s site of activity by entering the new site within ten business days of notification of such a change where sponsor rules or regulations permit such a change. Sponsors must promptly enter any change in the site of activity in those instances where the sponsor is responsible for the placement. Sponsors must identify the “primary” site of activity of an exchange visitor if multiple sites of activity are reported in SEVIS.
(c) Change in sponsor’s circumstance. Sponsors must report within ten business days in SEVIS or directly to the Department of State, if appropriate, any material changes to their exchange visitor program as follows:
(1) Change of business and/or mailing address, telephone number, facsimile number, or email address;
(2) Change in the composition of the sponsor organization that affects its status as a United States Person as defined in § 62.2, which includes a new Employment Identification Number (EIN);
(3) Change of Responsible Officer or Alternate Responsible Officer;
(4) Major change of ownership or control of the sponsor’s organization as defined in § 62.60(e);
(5) Change of the sponsor’s principal place of business to a location outside the United States;
(6) Change in financial circumstances that may render the sponsor unable to comply with its obligations as set forth in § 62.9(e);
(7) Loss of licensure or accreditation;
(8) Loss or theft of Forms DS-2019, in which case a sponsor must notify the Department of State promptly by telephone or email of the SEVIS identification numbers of such Forms DS-2019 that have been lost or stolen;
(9) A decision by the sponsor to voluntarily cancel (withdraw) its exchange visitor program designation; or
(10) Any other material facts or events that may have an impact on the sponsor’s ability to properly administer or conduct its exchange visitor program.
(d) Serious problem or controversy. Sponsors must inform the Department of State on or before the next business day by telephone (confirmed promptly in writing by facsimile or email) of any investigations of an exchange visitor’s site of activity or serious problem or controversy that could be expected to bring the Department of State, the Exchange Visitor Program, or the sponsor’s exchange visitor program into notoriety or disrepute, including any potential litigation related to a sponsor’s exchange visitor program, in which the sponsor or an exchange visitor may be a named party.
§ 62.14 Insurance.
(a) Sponsors must require that all exchange visitors have insurance in effect that covers the exchange visitors for sickness or accidents during the period of time that they participate in the sponsor’s exchange visitor program. In addition, sponsors must require that accompanying spouses and dependents of exchange visitors have insurance for sickness and accidents. Sponsors must inform all exchange visitors that they, and any accompanying spouse and dependent(s), also may be subject to the requirements of the Affordable Care Act.
(b) The period of required coverage is the actual duration of the exchange visitor’s participation in the sponsor’s exchange visitor program as recorded in SEVIS in the “Program Begin Date,” and as applicable, the “Program End Date,” “Effective Program End Date,” or “Effective Date of Termination” fields. Sponsors are not authorized to charge fees to their sponsored exchange visitors for the provision of insurance coverage beyond any demonstrable and justifiable staff time. Sponsors are not required to, but may, offer supplemental “entry to exit” coverage (i.e., coverage from the time the exchange visitor departs his or her home country until he or she returns). If the sponsor provides health insurance, or arranges for health insurance to be offered the exchange visitor, via payroll deduction at the host organization, the exchange visitor must voluntarily authorize this action in writing and also be given the opportunity to make other arrangements to obtain insurance. These authorizations must be kept on file by the sponsor. Minimum coverage must provide:
(1) Medical benefits of at least $100,000 per accident or illness;
(2) Repatriation of remains in the amount of $25,000;
(3) Expenses associated with the medical evacuation of exchange visitors to his or her home country in the amount of $50,000; and
(4) Deductibles not to exceed $500 per accident or illness.
(c) Insurance policies secured to fulfill the requirements of this section:
(1) May require a waiting period for pre-existing conditions that is reasonable as determined by current industry standards;
(2) May include provisions for co-insurance under the terms of which the exchange visitor may be required to pay up to 25% of the covered benefits per accident or illness; and
(3) Must not unreasonably exclude coverage for perils inherent to the activities of the exchange program in which the exchange visitor participates.
(d) Any policy, plan, or contract secured to fill the above requirements must, at a minimum, be:
(1) Underwritten by an insurance corporation having an A.M. Best rating of “A−” or above; a McGraw Hill Financial/Standard & Poor’s Claims-paying Ability rating of “A−” or above; a Weiss Research, Inc. rating of “B + ” or above; a Fitch Ratings, Inc. rating of “A−” or above; a Moody’s Investor Services rating of “A3” or above; or such other rating as the Department of State may from time to time specify; or
(2) Backed by the full faith and credit of the government of the exchange visitor’s home country; or
(3) Part of a health benefits program offered on a group basis to employees or enrolled students by a designated sponsor; or
(4) Offered through or underwritten by a federally qualified Health Maintenance Organization or eligible Competitive Medical Plan as determined by the Centers for Medicare and Medicaid Services of the U.S. Department of Health and Human Services.
(e) Federal, state or local government agencies; state colleges and universities; and public community colleges may, if permitted by law, self-insure any or all of the above-required insurance coverage.
(f) At the request of a non-governmental sponsor of an exchange visitor program, and upon a showing that such sponsor has funds readily available and under its control sufficient to meet the requirements of this section, the Department of State may permit the sponsor to self-insure or to accept full financial responsibility for such requirements.
(g) The Department of State may, in its sole discretion, condition its approval of self-insurance or the acceptance of full financial responsibility by the non-governmental sponsor by requiring such sponsor to secure a payment bond in favor of the Department of State guaranteeing the sponsor’s obligations hereunder.
(h) Accompanying spouses and dependents are required to be covered by insurance in the amounts set forth in paragraph (b) of this section. Sponsors must inform exchange visitors of this requirement, in writing, in advance of the exchange visitor’s arrival in the United States.
(i) Exchange visitors who willfully fail to maintain the insurance coverage set forth above while a participant in an exchange visitor program or who make material misrepresentations to the sponsor concerning such coverage will be deemed to be in violation of these regulations and will be subject to termination as an exchange visitor.
(j) Sponsors must terminate an exchange visitor’s participation in their program if the sponsor determines that the exchange visitor or any accompanying spouse or dependent willfully fails to remain in compliance with this section.
§ 62.15 Reporting requirements.
(a) Sponsors must submit annual reports to the Department of State that are generated through SEVIS on Form DS-3097. Such reports must be filed on an academic, calendar, or fiscal year basis, as directed by the Department of State in the sponsor’s letter of designation or redesignation, and must contain the following:
(1) Program report and evaluation. A summary of the activities in which exchange visitors were engaged, including an evaluation of program effectiveness, program difficulties, and number of staff used in the administration of the exchange visitor program;
(2) Reciprocity. A description of the nature and extent of reciprocity occurring in the sponsor’s exchange visitor program during the reporting year;
(3) Cross-cultural activities. A description of the cross-cultural activities the sponsor provided for its exchange visitors during the reporting year;
(4) Proof of insurance. Certification of compliance with insurance coverage requirements set forth in § 62.14;
(5) Certification. The following certification:
“I certify that the information in this report is complete and correct to the best of my knowledge and belief; and, that the above named program sponsor has complied with all health and accident insurance requirements for exchange visitors and their accompanying spouses and dependents (22 CFR 62.14).”
(i) For exchange visitor programs classified as “Government Programs,” this certification will be signed by the Responsible Officer.
(ii) For exchange visitor programs classified as P-1 or P-2 “Academic Programs” this certification will be signed by the institution’s Chief Executive Officer or Responsible Officer.
(iii) For exchange visitor programs classified as P-3 and P-4 “Private Sector Programs,” this certification will be signed by the organization’s Chief Executive Officer or Responsible Officer.
(6) Program participation. A numerical count of all exchange visitors participating in the sponsor’s program for the reporting year (i.e., by category, form usage, active status at one point during the annual cycle, and by other status).
(b) Sponsors of P-3 and P-4 “Private Sector” programs must file a program specific management review (in a format and on a schedule approved by the Department of State).
§ 62.16 Employment.
(a) An exchange visitor may receive compensation from the sponsor or the sponsor’s appropriate designee, such as the host organization, when employment activities are part of the exchange visitor’s program.
(b) An exchange visitor who engages in unauthorized employment shall be deemed to be in violation of his or her program status and is subject to termination as a participant in an exchange visitor program.
(c) The acceptance of employment by the accompanying spouse and dependents of an exchange visitor is governed by Department of Homeland Security regulations.
§ 62.17 Fees and charges.
(a) Remittances. Fees prescribed within the framework of 31 U.S.C. 9701 must be submitted as directed by the Department and must be in the amount prescribed by law or regulation.
(b) Amounts of fees. The following fees are prescribed.
(1) For filing an application for program designation and/or redesignation (Form DS-3036) – $3,982.00.
(2) For filing an application for exchange visitor status changes (i.e., extension beyond the maximum duration, change of category, reinstatement, reinstatement-update SEVIS status, ECFMG sponsorship authorization, and permission to issue) – $367.00.
Subpart B – Specific Program Provisions
§ 62.20 Professors and research scholars.
(a) Introduction. These regulations govern Exchange Visitor Program participants in the categories of professor and research scholar, except:
(1) Alien physicians in graduate medical education or training, who are governed by regulations set forth at § 62.27; and
(2) Short-term scholars, who are governed by regulations set forth at § 62.21.
(b) Purpose. The purpose of the Exchange Visitor Program, in part, is to foster the exchange of ideas between Americans and foreign nationals and to stimulate international collaborative teaching, lecturing and research efforts. The exchange of professors and research scholars promotes the exchange of ideas, research, mutual enrichment, and linkages between research and educational institutions in the United States and foreign countries. It does so by providing foreign professors and research scholars the opportunity to engage in research, teaching and lecturing with their American colleagues, to participate actively in cross-cultural activities with Americans, and ultimately to share with their countrymen their experiences and increased knowledge of the United States and their substantive fields.
(c) Designation. The Department of State may, in its sole discretion, designate bona fide exchange visitor programs, which offer foreign nationals the opportunity to engage in research, teaching, lecturing, observing, or consulting at research institutions, corporate research facilities, museums, libraries, post-secondary accredited educational institutions, or similar types of institutions in the United States.
(d) Visitor eligibility. An individual may be selected for participation in the Exchange Visitor Program as a professor or research scholar subject to the following conditions:
(1) The participant must not be a candidate for a tenure track position;
(2) The participant has not been physically present in the United States as a nonimmigrant pursuant to the provisions of 8 U.S.C. 1101(a)(15)(J) for all or part of the twelve-month period immediately proceeding the date of program commencement set forth on his or her Form DS-2019, unless:
(i) The participant is transferring to the sponsor’s program pursuant to provisions set forth in § 62.42;
(ii) The participant’s presence in the United States was of less than six months duration; or
(iii) The participant’s presence in the United States was pursuant to a short-term scholar exchange activity as authorized by § 62.21; and
(3) The participant is not subject to the prohibition against repeat participation set forth at § 62.20(i)(2).
(e) Issuance of Form DS-2019. The Form DS-2019 must be issued only after the professor or research scholar has been accepted by the institution where he or she will participate in an exchange visitor program.
(f) Location of the exchange. Professors or research scholars must conduct their exchange activity at the site(s) of activity identified in SEVIS, which may be either the location of the exchange visitor program sponsor or the site of a third party facilitating the exchange with permission of the Responsible Officer. An exchange visitor may also engage in activities at other locations if such activities constitute occasional lectures or consultations permitted by paragraph (g) of this section. All such sites of activity must be entered into SEVIS while the exchange visitor’s SEVIS record is in Initial or Active status.
(g) Occasional lectures or consultations. Professors and research scholars may participate in occasional lectures and short-term consultations, if authorized to do so by his or her sponsor. Such lectures and consultations must be incidental to the exchange visitor’s primary program activities. If wages or other remuneration are received by the exchange visitor for such activities, the exchange visitor must act as an independent contractor, as such term is defined in 8 CFR 274a.1(j), and the following criteria and procedures must be satisfied:
(1) Criteria. The occasional lectures or short-term consultations must:
(i) Be directly related to the objectives of the exchange visitor’s program;
(ii) Be incidental to the exchange visitor’s primary program activities;
(iii) Not delay the completion date of the exchange visitor’s program; and
(iv) Be documented in SEVIS.
(2) Procedures. (i) To obtain authorization to engage in occasional lectures or short-term consultations involving wages or other remuneration, the exchange visitor must present to the responsible officer:
(A) A letter from the offeror setting forth the terms and conditions of the offer to lecture or consult, including the duration, number of hours, field or subject, amount of compensation, and description of such activity; and
(B) A letter from the exchange visitor’s department head or supervisor recommending such activity and explaining how the activity would enhance the exchange visitor’s program.
(ii) The responsible officer must review the letters required in paragraph (g)(2)(i) of this section and make a written determination whether such activity is warranted, will not interrupt the exchange visitor’s original objective, and satisfies the criteria set forth in paragraph (g)(1) of this section.
(h) Change of activity. At the discretion and approval of the responsible officer, professors may freely engage in research and research scholars may freely engage in teaching and lecturing. Because these activities are intertwined, such a change of activity is not considered a change of category necessitating formal approval by the Department of State and does not require the issuance of a new Form DS-2019 to reflect a change in category. Such change in activity does not extend the exchange visitor’s maximum duration of program participation.
(i) Duration of participation. The permitted duration of program participation for a professor or research scholar is as follows:
(1) General limitation. A professor or research scholar may be authorized to participate in the Exchange Visitor Program for the length of time necessary to complete his or her program, provided such time does not exceed five years. The five-year period of permitted program participation is continuous and begins with the initial program begin date documented in SEVIS or the date such status was acquired via a petition submitted and approved by the Department of Homeland Security (DHS) as documented in SEVIS and ends five years from such date.
(2) Repeat participation. Exchange participants who have entered the United States under the Exchange Visitor Program as a professor or research scholar, or who have acquired such status while in the United States, and who have completed his or her program are not eligible for participation as a professor or research scholar for a period of two years following the end date of such program participation as identified in SEVIS.
(3) Extensions. A responsible officer may not extend the period of program duration beyond the five-year period of maximum program duration authorized for professor and research scholar participants. The Department may, in its sole discretion, authorize an extension beyond the permitted five-year period, as submitted by a “G-7” program sponsor, upon successful demonstration of the following:
(i) The participant for whom an extension is requested is engaged in a research project under the direct sponsorship of a Federally Funded National Research and Development Center (“FFNRDC”) or a U.S. Federal Laboratory;
(ii) The FFNRDC or U.S. Federal Laboratory requesting the extension on behalf of the participant has determined, through peer review, that the participant’s continued involvement in the project is beneficial to its successful conclusion; and
(iii) The Secretary of the Department of Homeland Security has determined in his/her discretion that the extension may be approved;
(iv) The extension request is for not more than five years.
§ 62.21 Short-term scholars.
(a) Introduction. These regulations govern scholars coming to the United States for a period of up to four months to lecture, observe, consult, and to participate in seminars, workshops, conferences, study tours, professional meetings, or similar types of educational and professional activities.
(b) Purpose. The Exchange Visitor Program promotes the interchange of knowledge and skills among foreign and American scholars. It does so by providing foreign scholars the opportunity to exchange ideas with their American colleagues, participate in educational and professional programs, confer on common problems and projects, and promote professional relationships and communications.
(c) Designation. The Department of State may, in its sole discretion, designate bona fide programs which offer foreign nationals the opportunity to engage in short-term visits for the purpose of lecturing, observing, consulting, training, or demonstrating special skills at research institutions, museums, libraries, post-secondary accredited educational institutions, or similar types of institutions.
(d) Visitor eligibility. A person participating in the Exchange Visitor Program under this section shall satisfy the definition of a short-term scholar as set forth in § 62.4.
(e) Cross-cultural activities and orientation. Due to the nature of such exchanges, sponsors of programs for short-term scholars shall be exempted from the requirements of providing cross-cultural activities and orientation as set forth in § 62.8(d) and § 62.10(c). However, sponsors are encouraged to provide such programs for short-term scholars whenever appropriate.
(f) Location of exchange. The short-term scholar shall participate in the Exchange Visitor Program at the conferences, workshops, seminars, or other events or activities stated on his or her Form DS-2019. A participant may also lecture or consult at institutions not listed on the Form DS-2019 if his or her Responsible Officer issues a written authorization of such activity. Such written authorization must be attached to the participant’s Form DS-2019.
(g) Duration of participation. The short-term scholar shall be authorized to participate in the Exchange Visitor Program for the length of time necessary to complete the program, which time shall not exceed six months. Programs under this section are exempted from § 62.8(b) governing the minimum duration of a program. Extensions beyond the duration of participation are not permitted under this category.
§ 62.22 Trainees and interns.
(a) Introduction. These regulations govern Exchange Visitor Programs under which foreign nationals with significant experience in their occupational field have the opportunity to receive training in the United States in such field. These regulations also establish a new internship program under which foreign national students and recent graduates of foreign post-secondary academic institutions have the opportunity to receive training in the United States in their field of academic study. These regulations include specific requirements to ensure that both trainees and interns receive hands-on experience in their specific fields of study/expertise and that they do not merely participate in work programs. Regulations dealing with training opportunities for certain foreign students who are studying at post-secondary accredited educational institutions in the United States are located at § 62.23 (“College and University Students”). Regulations governing alien physicians in graduate medical education or training are located at § 62.27 (“Alien Physicians”).
(b) Purpose. (1)(i) The primary objectives of the programs offered under these regulations are to enhance the skills and expertise of exchange visitors in their academic or occupational fields through participation in structured and guided work-based training and internship programs and to improve participants’ knowledge of American techniques, methodologies, and technology. Such training and internship programs are also intended to increase participants’ understanding of American culture and society and to enhance Americans’ knowledge of foreign cultures and skills through an open interchange of ideas between participants and their American associates. A key goal of the Fulbright-Hays Act, which authorizes these programs, is that participants will return to their home countries and share their experiences with their countrymen.
(ii) Exchange Visitor Program training and internship programs must not be used as substitutes for ordinary employment or work purposes; nor may they be used under any circumstances to displace American workers. The requirements in these regulations for trainees are designed to distinguish between bona fide training, which is permitted, and merely gaining additional work experience, which is not permitted. The requirements in these regulations for interns are designed to distinguish between a period of work-based learning in the intern’s academic field, which is permitted (and which requires a substantial academic framework in the participant’s field), and unskilled labor, which is not.
(2) In addition, a specific objective of the new internship program is to provide foreign nationals who are currently enrolled full-time and pursuing studies at a degree- or certificate-granting post-secondary academic institution or graduated from such an institution no more than 12 months prior to their exchange visitor program begin date a period of work-based learning to allow them to develop practical skills that will enhance their future careers. Bridging the gap between formal education and practical work experience and gaining substantive cross-cultural experience are major goals in educational institutions around the world. By providing training opportunities for current foreign students and recent foreign graduates at formative stages of their development, the U.S. Government will build partnerships, promote mutual understanding, and develop networks for relationships that will last through generations as these foreign nationals move into leadership roles in a broad range of occupational fields in their own societies. These results are closely tied to the goals, themes, and spirit of the Fulbright-Hays Act.
(c) Designation. (1) The Department may, in its sole discretion, designate as sponsors those entities it deems to meet the eligibility requirements set forth in Subpart A of 22 CFR part 62 and to have the organizational capacity successfully to administer and facilitate training and internship programs.
(2) Sponsors must provide training and internship programs only in the occupational category or categories for which the Department has designated them as sponsors. The Department may designate training and internship programs in any of the following occupational categories:
(i) Agriculture, Forestry, and Fishing;
(ii) Arts and Culture;
(iii) Construction and Building Trades;
(iv) Education, Social Sciences, Library Science, Counseling and Social Services;
(v) Health Related Occupations;
(vi) Hospitality and Tourism;
(vii) Information Media and Communications;
(viii) Management, Business, Commerce and Finance;
(ix) Public Administration and Law; and
(x) The Sciences, Engineering, Architecture, Mathematics, and Industrial Occupations.
(d) Selection criteria. (1) In addition to satisfying the general requirements set forth in § 62.10(a), sponsors must ensure that trainees and interns have verifiable English language skills sufficient to function on a day-to-day basis in their training environment. Sponsors must verify an applicant’s English language proficiency through a recognized English language test, by signed documentation from an academic institution or English language school, or through a documented interview conducted by the sponsor either in-person or by videoconferencing, or by telephone if videoconferencing is not a viable option.
(2) Sponsors of training programs must verify that all potential trainees are foreign nationals who have either a degree or professional certificate from a foreign post-secondary academic institution and at least one year of prior related work experience in their occupational field acquired outside the United States or five years of work experience in their occupational field acquired outside the United States.
(3) Sponsors of internship programs must verify that all potential interns are foreign nationals who are currently enrolled full-time and pursuing studies in their advanced chosen career field at a degree- or certificate-granting post-secondary academic institution outside the United States or graduated from such an institution no more than 12 months prior to their exchange visitor program begin date.
(e) Issuance of Forms DS-2019. In addition to the requirements set forth in Subpart A, sponsors must ensure that:
(1) They do not issue Forms DS-2019 to potential participants in training and internship programs until they secure placements for trainees or interns and complete and secure requisite signatures on Form DS-7002, Training/Internship Placement Plan (T/IPP);
(2) Trainees and interns have sufficient finances to support themselves for their entire stay in the United States, including housing and living expenses; and
(3) The training and internship programs expose participants to American techniques, methodologies, and technology and expand upon the participants’ existing knowledge and skills. Programs must not duplicate the participants’ prior work experience or training received elsewhere.
(f) Obligations of training and internship program sponsors. (1) Sponsors designated by the Department to administer training and internship programs must:
(i) Ensure that trainees and interns are appropriately selected, placed, oriented, supervised, and evaluated;
(ii) Be available to trainees and interns (and host organizations, as appropriate) to assist as facilitators, counselors, and information resources;
(iii) Ensure that training and internship programs provide a balance between the trainees’ and interns’ learning opportunities and their contributions to the organizations in which they are placed;
(iv) Ensure that the training and internship programs are full-time (minimum of 32 hours a week); and
(v) Ensure that any host organizations and third parties involved in the recruitment, selection, screening, placement, orientation, evaluation for, or the provision of training and internship programs are sufficiently educated on the goals, objectives, and regulations of the Exchange Visitor Program and adhere to all regulations set forth in this part as well as all additional terms and conditions governing Exchange Visitor Program administration that the Department may from time to time impose.
(2) Sponsors must certify that they or any host organization acting on the sponsor’s behalf:
(i) Have sufficient resources, plant, equipment, and trained personnel available to provide the specified training and internship program;
(ii) Provide continuous on-site supervision and mentoring of trainees and interns by experienced and knowledgeable staff;
(iii) Ensure that trainees and interns obtain skills, knowledge, and competencies through structured and guided activities such as classroom training, seminars, rotation through several departments, on-the-job training, attendance at conferences, and similar learning activities, as appropriate in specific circumstances;
(iv) Conduct periodic evaluations of trainees and interns, as set forth in § 62.22(l);
(v) Do not displace full- or part-time or temporary or permanent American workers or serve to fill a labor need and ensure that the positions that trainees and interns fill exist primarily to assist trainees and interns in achieving the objectives of their participation in training and internship programs; and
(vi) Certify that training and internship programs in the field of agriculture meet all the requirements of the Fair Labor Standards Act, as amended (29 U.S.C. 201 et seq.) and the Migrant and Seasonal Agricultural Worker Protection Act, as amended (29 U.S.C. 1801 et seq.).
(3) Sponsors or any third parties acting on their behalf must complete thorough screening of potential trainees or interns, including a documented interview conducted by the sponsor either in-person or by videoconferencing, or by telephone if videoconferencing is not a viable option.
(4) Sponsors must retain all documents referred to in § 62.22(f) for at least three years following the completion of all training and internship programs. Documents and any requisite signatures may be retained in either hard copy or electronic format.
(g) Use of third parties – (1) Sponsors use of third parties. Sponsors may engage third parties (including, but not limited to host organizations, partners, local businesses, governmental entities, academic institutions, and other foreign or domestic agents) to assist them in the conduct of their designated training and internship programs. Such third parties must have an executed written agreement with the sponsor to act on behalf of the sponsor in the conduct of the sponsor’s program. This agreement must outline the obligations and full relationship between the sponsor and third party on all matters involving the administration of their exchange visitor program. A sponsor’s use of a third party does not relieve the sponsor of its obligations to comply with and to ensure third party compliance with Exchange Visitor Program regulations. Any failure by any third party to comply with the regulations set forth in this part or with any additional terms and conditions governing Exchange Visitor Program administration that the Department may from time to time impose will be imputed to the sponsors engaging such third party.
(2) Screening and vetting third parties operating outside the United States. Sponsors must ascertain that third parties operating outside the United States are legitimate entities within the context of their home country environment. For third parties that operate as businesses, sponsors must obtain relevant home country documentation, such as a business registration or certification. Such home country documentation must include an English Language translation for any business registration or certification documents submitted in a foreign language. Written agreements between sponsors and third parties operating outside the United States must include annually updated price lists for training and internship programs offered by each third party, and must indicate that such overseas third parties are sufficiently trained in all aspects of the programs they represent, including the regulations set forth in this part.
(3) Screening and vetting host organizations. Sponsors must adequately screen all potential host organizations at which a trainee or intern will be placed by obtaining the following information:
(i) Employer Identification Number (EIN) used for tax purposes;
(ii) Third party verification of telephone number, address, and professional activities, e.g., via advertising, brochures, Web site, and/or feedback from prior participants; and
(iii) Verification of Worker’s Compensation Insurance Policy or equivalent in each state or, if applicable, evidence of state exemption from requirement of coverage.
(4) Site visits of host organizations. Sponsors must conduct site visits of host organizations that have not previously participated successfully in the sponsor’s training and internship programs and that have fewer than 25 employees or less than three million dollars in annual revenue. Placements at academic institutions or at federal, state, or local government offices are specifically excluded from this requirement. The purpose of the site visits is for the sponsors to ensure that host organizations possess and maintain the ability and resources to provide structured and guided work-based learning experiences according to individualized T/IPPs and that host organizations understand and meet their obligations set forth in this part.
(h) Host organization obligations. Sponsors must ensure that:
(1) Host organizations sign a completed Form DS-7002 to verify that all placements are appropriate and consistent with the objectives of the trainees or interns as outlined in their program applications and as set forth in their T/IPPs. All parties involved in internship programs should recognize that interns are seeking entry-level training and experience. Accordingly, all placements must be tailored to the skills and experience level of the individual intern;
(2) Host organizations notify sponsors promptly of any concerns about, changes in, or deviations from T/IPPs during training and internship programs and contact sponsors immediately in the event of any emergency involving trainees or interns;
(3) Host organizations abide by all federal, state, and local occupational health and safety laws; and
(4) Host organizations abide by all program rules and regulations set forth by the sponsors, including the completion of all mandatory program evaluations.
(i) Training/internship placement plan (Form DS-7002). (1) Sponsors must fully complete and obtain all requisite signatures on a Form DS-7002 for each trainee or intern before issuing a Form DS-2019. Sponsors must provide each signatory an executed copy of the Form DS-7002. Upon request, trainees and interns must present their fully executed Form DS-7002 to Consular Officials during their visa interview.
(2) To further distinguish between bona fide training for trainees or work-based learning for interns, which are permitted, and unskilled or casual labor positions which are not, all T/IPPs must:
(i) State the specific goals and objectives of the training and internship program (for each phase or component, if applicable);
(ii) Detail the knowledge, skills, or techniques to be imparted to the trainee or intern (for each phase or component, if applicable); and
(iii) Describe the methods of performance evaluation and the supervision for each phase or component, if applicable.
(3) A T/IPP for trainees must be divided into specific and various phases or components, and for each phase or component must:
(i) Describe the methodology of training and
(ii) Provide a chronology or syllabus.
(4) A T/IPP for interns must:
(i) Describe the role of the intern in the organization and, if applicable, identify various departments or functional areas in which the intern will work; and
(ii) Identify the specific tasks and activities the intern will complete.
(j) Program exclusions. Sponsors designated by the Department to administer training and internship programs must not:
(1) Place trainees or interns in unskilled or casual labor positions, in positions that require or involve child care or elder care; or in clinical or any other kind of work that involves patient care or patient contact, including any work that would require trainees or interns to provide therapy, medication, or other clinical or medical care (e.g., sports or physical therapy, psychological counseling, nursing, dentistry, veterinary medicine, social work, speech therapy, early childhood education);
(2) Place trainees or interns in positions, occupations, or businesses that could bring the Exchange Visitor Program or the Department into notoriety or disrepute; or
(3) Engage or otherwise cooperate or contract with a Staffing/Employment Agency to recruit, screen, orient, place, evaluate, or train trainees or interns, or in any other way involve such agencies in an Exchange Visitor Program training and internship program.
(4) Issue a T/IPP for any trainee or intern for which the duties involve more than 20 per cent clerical work.
(5) Have less than three departmental or functional rotations for “Hospitality and Tourism” training and internship programs of six months or longer.
(k) Duration. The duration of participation in a training and internship program must be established before a sponsor issues a Form DS-2019 and must not exceed the sponsor’s authorized designation as set forth in the sponsor’s letter of designation or most recent letter of redesignation. Except as noted below, the maximum duration of a training program is 18 months, and the maximum duration of an internship program is 12 months. For training programs in the field of agriculture and in the occupational category of Hospitality and Tourism, the maximum duration of program participation is 12 months. If an original T/IPP specifies that at least six months of a program includes related classroom participation and studies, training programs in the field of agriculture may be designated for a total duration of 18 months. Program extensions are permitted within the maximum duration as set forth in the letter of designation/redesignation provided that the need for an extended training or internship program is documented by the full completion and execution of a new Form DS-7002. 12-month training programs in the field of agriculture may not be extended to 18 months by adding six months of classroom participation and studies at the end of the original 12-month program duration. Per above, the six months of related classroom participation and studies must have been part of the trainee’s original T/IPP.
(l) Evaluations. In order to ensure the quality of training and internship programs, sponsors must develop procedures for evaluating all trainees and interns. All required evaluations must be completed prior to the conclusion of a training and internship program, and both the trainees and interns and their immediate supervisors must sign the evaluation forms. For programs exceeding six months’ duration, at a minimum, midpoint and concluding evaluations are required. For programs of six months or less, at a minimum, concluding evaluations are required. Sponsors must retain trainee and intern evaluations (electronic or hard copy) for a period of at least three years following the completion of each training and internship program.
(m) Issuance of certificate of eligibility for exchange visitor (J-1) status. Sponsors must not deliver or cause to be delivered any Certificate of Eligibility for Exchange Visitor (J-1) Status (Form DS-2019) to potential trainees or interns unless the individualized Form DS-7002 required by § 62.22(i) has been completed and signed by all requisite parties.
(n) Additional training and internship program participation. Foreign nationals who enter the United States under the Exchange Visitor Program to participate in training and internship programs are eligible to participate in additional training and internship programs under certain conditions. For both trainees and interns, additional training and internship programs must address the development of more advanced skills or a different field of expertise. Interns may apply for additional internship programs if they:
(1) Are currently enrolled full-time and pursuing studies at degree- or certificate-granting post-secondary academic institutions outside the United States; or,
(2) Have graduated from such institutions no more than 12 months prior to the start of their proposed exchange visitor program. A new internship is also permissible when a student has successfully completed a recognized course of study (i.e., associate, bachelors, masters, Ph.D., or their recognized equivalents) and has enrolled and is pursuing studies at the next higher level of academic study. Trainees are eligible for additional training programs after a period of at least two years residency outside the United States following completion of their training program. Participants who have successfully completed internship programs and no longer meet the selection criteria for an internship program may participate in a training program if they have resided outside the United States or its territories for at least two years. If participants meet these selection criteria and fulfill these conditions, there will be no limit to the number of times they may participate in a training and internship program.
§ 62.23 College and university students.
(a) Purpose. A program under this section provides foreign students the opportunity to participate in a designated exchange visitor program while studying at a degree-granting post-secondary accredited academic institution or participating in a student internship program which fulfills the student’s academic study. A student sponsored in this category may participate in a degree, non-degree, or student internship program. Such an exchange is intended to promote mutual understanding by fostering the exchange of ideas between foreign students and their American counterparts.
(b) Designation. The Department of State may, in its sole discretion, designate bona fide programs which offer foreign students the opportunity to study in the United States at a post-secondary accredited academic institution or to participate in a student internship program.
(c) Selection criteria. A sponsor selects the college and university students who participate in its exchange visitor program. A sponsor must secure sufficient background information on the students to ensure that they have the academic credentials required for its program. A student is eligible for participation in the Exchange Visitor Program if at any time during his or her educational program in the United States:
(1) The student or his or her program is financed directly or indirectly by:
(i) The United States Government;
(ii) The government of the student’s home country; or
(iii) An international organization of which the United States is a member by treaty or statute;
(2) The program is carried out pursuant to an agreement between the United States Government and a foreign government;
(3) The program is carried out pursuant to written agreement between:
(i) American and foreign academic institutions;
(ii) An American academic institution and a foreign government; or
(iii) A state or local government in the United States and a foreign government;
(4) The student is supported substantially by funding from any source other than personal or family funds; or
(5) The student is participating in a student internship program as described in paragraph (i) of this section.
(d) Admissions requirement. In addition to satisfying the requirements of § 62.10(a), a sponsor must ensure that the student has been admitted to, or accepted for a student internship program offered by, the post-secondary accredited academic institution listed on the Form DS-2019 before issuing the Form.
(e) Full course of study requirement. A student, other than a student intern described in paragraph (h)(3)(i) of this section, must pursue a full course of study at a post-secondary accredited academic institution in the United States as defined in § 62.2, except under the following circumstances:
(1) Vacation. During official school breaks and summer vacations if the student is eligible and intends to register for the next term. A student attending a school on a quarter or trimester calendar may be permitted to take the annual vacation during any one of the quarters or trimesters instead of during the summer.
(2) Medical illness. If the student is compelled to reduce or interrupt a full course of study due to an illness or medical condition and the student presents to the responsible officer a written statement from a physician requiring or recommending an interruption or reduction in studies.
(3) Bona fide academic reason. If the student is compelled to pursue less than a full course of study for a term and the student presents to the responsible officer a written statement from the academic dean or advisor recommending the student to reduce his or her academic load to less than a full course of study due to an academic reason.
(4) Non-degree program. If the student is engaged full time in a prescribed course of study in a non-degree program of up to 24 months duration conducted by a post-secondary accredited academic institution.
(5) Academic training. If the student is participating in authorized academic training in accordance with paragraph (f) of this section.
(6) Final term. If the student needs less than a full course of study to complete the academic requirements in his or her final term.
(f) Academic training – (1) Purpose. The primary purpose of academic training is to permit a student, other than a student intern described in paragraph (i) of this section, to participate in an academic training program during his or her studies, without wages or other remuneration, with the approval of the academic dean or advisor and the responsible officer.
(2) Conditions. A student, other than a student intern described in paragraph (i) of this section, may be authorized to participate in an academic training program for wages or other remuneration:
(i) During his or her studies; or
(ii) Commencing not later than 30 days after completion of his or her studies, if the criteria, time limitations, procedures, and evaluations listed below in paragraphs (f)(3) through (f)(6) are satisfied:
(3) Criteria. (i) The student is primarily in the United States to study rather than engage in academic training;
(ii) The student is participating in academic training that is directly related to his or her major field of study at the post-secondary accredited academic institution listed on his or her Form DS-2019;
(iii) The student is in good academic standing with the post-secondary accredited academic institution; and
(iv) The student receives written approval in advance from the responsible officer for the duration and type of academic training.
(4) Time limitations. The student is authorized to participate in academic training for the length of time necessary to complete the goals and objectives of the training, provided that the amount of time for academic training:
(i) Is approved by the academic dean or advisor and approved by the responsible officer;
(ii) For undergraduate and pre-doctoral training, does not exceed 18 months, inclusive of any prior academic training in the United States, or the period of full course of study in the United States, whichever is less; except that additional time for academic training is allowed to the extent necessary for the exchange visitor to satisfy the mandatory requirements of his or her degree program in the United States;
(iii) For post-doctoral training, does not exceed a total of 36 months, inclusive of any prior academic training in the United States as an exchange visitor, or the period of the full course of study in the United States, whichever is less.
(5) Procedures. To obtain authorization to engage in academic training:
(i) The student must present to the responsible officer a letter of recommendation from the student’s academic dean or advisor setting forth:
(A) The goals and objectives of the specific academic training program;
(B) A description of the academic training program, including its location, the name and address of the training supervisor, number of hours per week, and dates of the training;
(C) How the academic training relates to the student’s major field of study; and
(D) Why it is an integral or critical part of the academic program of the student.
(ii) The responsible officer must:
(A) Determine if and to what extent the student has previously participated in academic training as a student, in order to ensure the student does not exceed the period permitted in paragraph (f) of this section;
(B) Review the letter of recommendation required in paragraph (f)(5)(i) of this section; and
(C) Make a written determination of whether the academic training currently being requested is warranted and the criteria and time limitations set forth in paragraph (f)(3) and (4) of this section are satisfied.
(6) Evaluation requirements. The sponsor must evaluate the effectiveness and appropriateness of the academic training in achieving the stated goals and objectives in order to ensure the quality of the academic training program.
(g) Student employment. A student, other than a student intern described in paragraph (i) of this section, may engage in part-time employment when the following criteria and conditions are satisfied.
(1) The student employment:
(i) Is pursuant to the terms of a scholarship, fellowship, or assistantship;
(ii) Occurs on the premises of the post-secondary accredited academic institution the visitor is authorized to attend; or
(iii) Occurs off-campus when necessary because of serious, urgent, and unforeseen economic circumstances which have arisen since acquiring exchange visitor status.
(2) A student may engage in employment as provided in paragraph (g)(1) of this section if the:
(i) Student is in good academic standing at the post-secondary accredited academic institution;
(ii) Student continues to engage in a full course of study, except for official school breaks and the student’s annual vacation;
(iii) Employment totals no more than 20 hours per week, except during official school breaks and the student’s annual vacation; and
(iv) The responsible officer has approved the specific employment in advance and in writing. Such approval may be valid for up to 12 months, but is automatically withdrawn if the student’s program is transferred or terminated.
(h) Duration of participation – (1) Degree student. A student who is in a degree program may be authorized to participate in the Exchange Visitor Program as long as he or she is either:
(i) Studying at the post-secondary accredited academic institution listed on his or her Form DS-2019 and:
(A) Pursuing a full course of study as set forth in paragraph (e) of this section, and
(B) Maintaining satisfactory advancement towards the completion of the student’s academic program; or
(ii) Participating in an authorized academic training program as permitted in paragraph (f) of this section.
(2) Non-degree student. A student who is in a non-degree program may be authorized to participate in the Exchange Visitor Program for up to 24 months. Such a student must be:
(i) Studying at the post-secondary accredited academic institution listed on his or her Form DS-2019 and:
(A) Participating full-time in a prescribed course of study; and
(B) Maintaining satisfactory advancement towards the completion of his or her academic program; or
(ii) Participating in an authorized academic training program as permitted in paragraph (f) of this section.
(3) Student intern. A student intern participating in a student internship program may be authorized to participate in the Exchange Visitor Program for up to 12 months for each degree/major as permitted in paragraph (i) of this section as long as the student intern is:
(i) Engaged full-time in a student internship program sponsored by the post-secondary accredited academic institution that issued Form DS-2019; and
(ii) Maintaining satisfactory advancement towards the completion of his or her student internship program.
(i) Student intern. The student intern is a foreign national enrolled in and pursuing a degree at an accredited post-secondary academic institution outside the United States and is participating in a student internship program in the United States that will fulfill the educational objectives for his or her current degree program at his or her home institution. The student intern must meet the following requirements:
(1) Criteria. (i) In addition to satisfying the general requirements set forth in § 62.10(a), a sponsor must ensure that the student intern has verifiable English language skills sufficient to function on a day-to-day basis in the internship environment. English language proficiency must be verified through a sponsor-conducted interview, by a recognized English language test, or by signed documentation from an academic institution or English language school.
(ii) The student intern is primarily in the United States to engage in a student internship program rather than to engage in employment or provide services to an employer;
(iii) The student intern has been accepted into a student internship program at the post-secondary accredited academic institution listed on his or her Form DS-2019;
(iv) The student intern is in good academic standing with the post-secondary academic institution outside the United States from which he or she is enrolled in and pursuing a degree; and
(v) The student intern will return to the academic program and fulfill and obtain a degree from such academic institution after completion of the student internship program.
(2) Program requirements. In addition to the requirements set forth in Subpart A, a sponsor must ensure that:
(i) It does not issue Form DS-2019 to a potential participant in a student internship program until it has secured a placement for the student intern and it completes and secures the requisite signatures on Form DS-7002 (T/IPP);
(ii) A student intern has sufficient finances to support himself or herself and dependants for their entire stay in the United States, including housing and living expenses; and
(iii) The student internship program exposes participants to American techniques, methodologies, and technology and expands upon the participants’ existing knowledge and skills. A program must not duplicate the student intern’s prior experience.
(3) Obligations of student internship program sponsors. (i) A sponsor designated by the Department to administer a student internship program must:
(A) Ensure that the student internship program is full-time (minimum of 32 hours a week); and
(B) Ensure that any host organization or other third party involved in the recruitment, selection, screening, placement, orientation, evaluation, or provision of a student internship program is sufficiently educated on the goals, objectives, and regulations of the Exchange Visitor Program and adheres to all regulations set forth in this part as well as all additional terms and conditions governing Exchange Visitor Program administration that the Department may from time to time impose.
(ii) A sponsor must ensure that it or any host organization acting on the sponsor’s behalf:
(A) Has sufficient resources, plant, equipment, and trained personnel available to provide the specified student internship program;
(B) Does not displace full- or part-time or temporary or permanent American workers or serve to fill a labor need and ensures that the position that the student interns fills exists solely to assist the student intern in achieving the objectives of his or her participation in a student internship program; and
(C) Certifies that student internship programs in the field of agriculture meet all the requirements of the Fair Labor Standards Act, as amended (29 U.S.C. 201 et seq.) and the Migrant and Seasonal Agricultural Worker Protection Act, as amended (29 U.S.C. 1801 et seq.).
(iii) Screening and vetting host organizations. A sponsor must adequately screen all potential host organizations at which a student intern will be placed by obtaining the following information:
(A) The Dun & Bradstreet identification number (unless the host organization is an academic institution, government entity, or family farm);
(B) Employer Identification Number (EIN) used for tax purposes;
(C) Verification of telephone number, address, and professional activities via advertising, brochures, Web site, and/or feedback from prior participants; and
(D) Verification of Workman’s Compensation Insurance Policy.
(iv) Site visits. A sponsor must conduct a site visit of any host organization that has not previously participated successfully in the sponsor’s student internship program, has fewer than 25 employees, or has less than three million dollars in annual revenue. Any placement at an academic institution or at a Federal, State, or local government office is specifically excluded from this requirement. The purpose of the site visit is for the sponsor to ensure that each host organization possesses and maintains the ability and resources to provide structured and guided work-based learning experiences according to individualized T/IPPs, and that each host organization understands and meets its obligations set forth in this part.
(4) Use of third parties. A sponsor may engage a third party (including, but not limited to a host organization, partner, local business, governmental entity, academic institution, or any other foreign or domestic agent) to assist it in the conduct of its designated student internship program. Such a third party must have an executed written agreement with the sponsor to act on behalf of the sponsor in the conduct of the sponsor’s program. This agreement must outline the full relationship between the sponsor and third party on all matters involving the administration of its exchange visitor program. A sponsor’s use of a third party does not relieve the sponsor of its obligations to comply with and to ensure third party compliance with Exchange Visitor Program regulations. Any failure by any third party to comply with the regulations set forth in this part or with any additional terms and conditions governing Exchange Visitor Program administration that the Department may from time to time impose will be imputed to the sponsor.
(5) Evaluation requirements. In order to ensure the quality of a student internship program, a sponsor must develop procedures for evaluating all student interns. All required evaluations must be completed prior to the conclusion of a student internship program, and the student intern and his or her immediate supervisor must sign the evaluation forms. At a minimum, all programs require a concluding evaluation, and programs lasting longer than six months also require a midpoint evaluation. For programs exceeding six months’ duration, at a minimum, midpoint and concluding evaluations are required. A sponsor must retain student intern evaluations (electronic or hard copy) for a period of at least three years following the completion of each student internship program.
(6) Employment, wages, or remuneration. A student intern is permitted to engage in full-time employment during the student internship program as outlined on his or her T/IPP, with or without wages or other compensation. Employment is not required for participation in the program. A student intern may be employed, however, only with the approval of the responsible officer and the student’s home institution’s dean or academic advisor.
(7) Training/Internship Placement Plan (Form DS-7002). (i) A sponsor must fully complete and obtain requisite signatures for a Form DS-7002 for each student intern before issuing a Form DS-2019. A sponsor must provide to each signatory an executed copy of the Form DS-7002. Upon request, a student intern must present his or her fully executed Form DS-7002 to a Consular Official during the visa interview.
(ii) To further distinguish between work-based learning for student interns, which is permitted, and ordinary employment or unskilled labor which is not, a T/IPP must:
(A) State the specific goals and objectives of the student internship program (for each phase or component, if applicable);
(B) Detail the knowledge, skills, or techniques to be imparted to the student intern (for each phase or component, if applicable); and
(C) Describe the methods of performance evaluation and the frequency of supervision (for each phase or component, if applicable).
(8) Program exclusions. A sponsor designated by the Department to administer a student internship program must:
(i) Not place a student intern in an unskilled or casual labor position, in a position that requires or involves child care or elder care, a position in the field of aviation, or, in clinical positions or engaging in any other kind of work that involves patient care or contact, including any work that would require student interns to provide therapy, medication, or other clinical or medical care (e.g., sports or physical therapy, psychological counseling, nursing, dentistry, veterinary medicine, social work, speech therapy, or early childhood education);
(ii) Not place a student intern in a position, occupation, or business that could bring the Exchange Visitor Program or the Department into notoriety or disrepute;
(iii) Not engage or otherwise cooperate or contract with a staffing/employment agency to recruit, screen, orient, place, evaluate, or train student interns, or in any other way involve such agencies in an Exchange Visitor Program student internship program;
(iv) Ensure that the duties of a student intern as outlined in the T/IPP will not involve more than 20 per cent clerical work, and that all tasks assigned to a student intern are necessary for the completion of the student internship program; and
(v) Ensure that all “Hospitality and Tourism” student internship programs of six months or longer contain at least three departmental or functional rotations.
§ 62.24 Teachers.
(a) Purpose. The regulations in this section govern exchange visitors who teach full-time in accredited public and private U.S. primary and secondary schools (K-12), including pre-kindergarten language immersion programs offered as regular courses of study by accredited primary schools. Programs in this category promote the interchange of U.S. and foreign teachers and enhance mutual understanding between the people of the United States and other countries. Exchange teachers sharpen their professional skills and participate in cross-cultural activities in schools and communities, and they return home after the exchange to share their experiences and increased knowledge of the United States and the U.S. educational system. Such exchanges enable foreign teachers to understand better U.S. culture, society and teaching practices at the primary and secondary levels, and enhance U.S. students’ knowledge of foreign cultures, customs and teaching approaches.
(b) Designation. The Department may, in its discretion, designate bona fide programs satisfying the objectives in paragraph (a) of this section as exchange visitor programs in the Teacher category.
(c) Definitions. In addition to those definitions set forth in § 62.2, the following definitions apply to the Teacher category of the Exchange Visitor Program:
(1) Accredited primary or accredited secondary school: Any publicly or privately operated primary or secondary institution for educating children in the United States that offers mainly academic programs and is duly accredited by the appropriate academic accrediting authority of the jurisdiction in which such institution is located.
(2) Full-time teaching: A minimum of 32 hours per week of teaching or teaching-related administrative activities.
(3) Home country school: An exchange teacher’s school in his or her country of nationality or last legal country of residence.
(4) Host school: The U.S.-accredited primary or secondary school in which a sponsor places an exchange teacher pursuant to the exchange teacher’s written acceptance of the placement.
(5) International school: A school that is so designated by its school district, state, or other applicable governing authority, or one whose curriculum focuses predominantly on international aspects of the subject matter taught and/or language immersion, or one that predominantly follows a national curriculum of a foreign country.
(6) Language immersion program: A program that is a regular course of study offered by an accredited school having sustained and enriched instruction, in a language not native to the majority of the student population, that occurs for at least fifty percent of the school day.
(7) Virtual exchange: A technology-enabled, sustained, people-to-people cross-cultural educational program that may supplement the goals of an in-person exchange and integrates global knowledge, cultural awareness, and/or foreign language into the classroom or other setting.
(d) Teacher eligibility. Foreign nationals are eligible to participate in exchange visitor programs as full-time teachers if, at the time of initial application to the sponsor, an individual making such application demonstrates to the satisfaction of the sponsor that he or she:
(1) Either:
(i) Meets the qualifications for teaching at the primary, including pre-kindergarten, or secondary levels in schools in his or her home country; is working as a teacher in his or her home country at the time of application; and has at least two years of full-time teaching experience; or
(ii) Is not working as a teacher in his or her home country at the time of application, but otherwise meets the qualifications for teaching at the primary (including pre-kindergarten) or secondary levels in schools in the home country; has had at least two years of full-time teaching experience within the past eight years; and, within 12 months of his or her application submission date for the program, has or will have completed an advanced degree (beyond a degree equivalent to a U.S. bachelor’s degree) in education or in an academic subject matter that he or she intends to teach or that is directly related to his or her teaching subject field;
(2) Possesses, at a minimum, a degree equivalent to a U.S. bachelor’s degree in either education or the academic subject field in which he or she intends to teach;
(3) Satisfies the teaching eligibility standards of the U.S. state in which he or she will teach (e.g., meets minimum educational requirements, has passed teacher training coursework at a sufficiently proficient level, has provided an evaluation of foreign teaching preparation coursework, has demonstrated the requisite prior teaching experience), to include any required criminal background or other checks;
(4) Is of good reputation and character; and
(5) Agrees to come to the United States temporarily as a full-time teacher of record in an accredited primary or secondary school. Exchange teachers may teach a variety of subjects and levels at their host school or schools, if qualified, but at the pre-kindergarten level, may teach only in language immersion programs.
(e) Teacher selection. Sponsors must screen foreign teachers carefully before accepting them for the program. In addition to the requirements set forth in § 62.10 and all security checks required by U.S. state departments of education and host schools, sponsors also must:
(1) Verify the qualifications of each foreign teacher to determine whether he or she satisfies the criteria set forth in paragraph (d) of this section;
(2) Secure references from one colleague and one current or former supervisor of each foreign teacher, attesting to that teacher’s good reputation, character and teaching skills;
(3) Verify that each selected foreign teacher applicant possesses sufficient proficiency in the English language to function in U.S. classrooms and to function on a day-to-day basis, in accordance with the provision for selection of exchange visitors set forth at § 62.10(a)(2); and
(4) Verify that each foreign teacher who is eligible for the program under paragraph (d)(1)(ii) of this section has a letter from the head of a school in another country, preferably that teacher’s home country, which states that school’s willingness to work with the exchange teacher on the cross-cultural activity component set forth in paragraph (h)(1)(ii). The foreign school with which the exchange teacher plans to work must be at the same academic level as the foreign teacher’s proposed host school. The letter submitted as part of the foreign teacher’s application package must be signed by the head of the school or another individual in an appropriate position of authority to speak for the school within the foreign country’s school system; the official signing the letter must list both email and telephone contact information. The letter may be submitted in English or in the original language of the home country with an English translation; the name, title/organization and contact information of the translator must be noted on the translation.
(f) Teaching position. Sponsors must ensure that:
(1) Forms DS-2019 are not issued until foreign teacher applicants have received and accepted written offers of full-time teaching positions from the accredited primary (including pre-kindergarten level) or secondary schools in which they will teach;
(2) Program dates coincide with the U.S. academic year cycle to ensure a smooth transition as exchange teachers arrive and depart, unless the sponsor notifies, and receives approval from, the Department for other exchange dates before the sponsor issues any Form DS-2019; sponsors should ensure that these dates are included in the exchange teacher’s contract;
(3) Exchange teachers comply with any applicable collective bargaining agreement;
(4) Exchange teacher appointments to positions within accredited primary or secondary schools are temporary, even if the teaching positions are permanent, and do not lead to tenure; exchange teachers must be employees of either the host or home school during their exchange.
(5) Teaching positions, including duties, responsibilities, hours of employment, and compensation, are commensurate with those of similarly-situated U.S. teachers in the school district or host school where that exchange teacher is assigned to teach; an exchange teacher, unless he or she is on a program where the Department is the sponsor, must be employed by and under the direct supervision and guidance of his or her host school and, where applicable, host school district; and
(6) A pre-kindergarten level exchange teacher is assigned to teach full-time in an accredited host school (or in several schools within the same host school district, including at several academic levels, with prior permission from the Department). If an exchange teacher is placed in a private school where there is no host school district, then he or she must teach a full-time schedule of at least 32 hours in a school or schools located no more than 25 miles from the main host school; in such a situation, sponsors must ensure that reasonable and effective modes of transportation exist to such additional sites of activity. An exchange teacher may teach at the pre-kindergarten level only in a language immersion program offered as regular course of study by an accredited primary school.
(g) Program disclosure. (1) As part of recruitment, in addition to the information required by § 62.10(b)-(c), sponsors must provide on their main Web sites and in their recruiting materials a general summary of fees and other costs for the program. This summary should include, but not be limited to, the sponsor fee; foreign or domestic third party or partner fees; visa fee; the Student and Exchange Visitor Information System (SEVIS) fee; insurance costs; estimates for food, housing and local transportation costs; expected work-related deductions; and estimates or ranges for all other fees charged for and significant general costs related to participation in the teacher exchange program.
(2) At the time a foreign teacher is selected for the program, and before the exchange visitor signs any contracts with the host school, sponsors and/or the host school must provide each individual exchange teacher the following information, either within the teacher’s contract or in a separate document: The name, location, and brief description of the host school; the terms and conditions of compensation (with deductions from gross salary); any provisions affecting the ability of the exchange teacher to be accompanied abroad by a spouse or dependents (including any related assistance and allowances); a summary of the significant components of the program (including a statement of the teaching requirements and related professional obligations, as well as the required cross-cultural activity component as set forth in paragraph (h) of this section); specific information on the fees and costs for which the exchange teacher will be responsible while on exchange in that school district in accordance with paragraph (g)(1); anticipated housing options and cost implications; specific local transportation options between the exchange teacher’s residence and the host school and transportation cost estimates; insurance costs for accident or illness coverage, repatriation of remains and medical evacuation as required by § 62.14; estimated personal expense money for initial costs the exchange teacher may incur upon arrival in the United States prior to receiving his or her first paycheck; certification or licensure procedures and costs at the host school; administrative fees; and any placement fees. Exchange teacher compensation, unless provided directly to the exchange teacher through government funding, through continued support from the exchange teacher’s home school, or from both the teacher’s home and host school in a shared cost arrangement, must be paid directly by the host school or host school district in which the exchange teacher is placed.
(h) Cross-cultural activity component. In addition to the requirements of § 62.10:
(1) Sponsors must require each exchange teacher to complete, within the United States, and during each academic year of program participation, at least one cross-cultural activity from each of the following two categories:
(i) An activity for the teacher’s classroom, larger host school or host school district population, or the community at large designed to give an overview of the history, traditions, heritage, culture, economy, educational system and/or other attributes of his or her home country. Sponsors of exchange teachers placed at international schools must require their exchange teachers to conduct at least one cross-cultural activity per academic year outside the host school in nearby schools or communities where international opportunities may be more limited than those found in their host school; and
(ii) An activity that involves U.S. student dialogue with schools or students in another country, preferably in the exchange teacher’s home school, through virtual exchange or other means, in order to supplement the goals of the in-person exchange.
(2) Sponsors must collect annual reports from their exchange teachers detailing the cross-cultural activity component of their exchange program. The annual report does not have to be in a specific format, but must include the exchange teacher’s full name and the program sponsor’s name. The report section about the cross-cultural activity component must contain the following information:
(i) The date(s) of each activity;
(ii) The location of each activity;
(iii) The audience for and participants in each activity;
(iv) A general overview of each activity, including the topic; and
(v) The estimated impact of each activity.
(i) Location of the exchange. Exchange teachers must participate in exchange visitor programs at the accredited primary or secondary schools listed on their Forms DS-2019 or at location(s) where the institutions are involved in official school activities (e.g., school field trips, teacher development programs);
(j) Duration of participation. Exchange teachers may be authorized to participate in the Exchange Visitor Program for the length of time necessary to complete the program, which may not exceed three years unless a specific extension of one or two years is authorized by the Department as set forth in paragraph (k) of this section.
(k) Program extensions. (1) Sponsors may request from the Department an extension of an exchange teacher’s exchange by either one or two years, but not by a semester or by other fractions of academic years.
(2) The sponsor’s request for extension must include:
(i) A letter of reference on official letterhead written by the host school or host school district administrator responsible for overseeing the exchange teacher that describes the exchange teacher’s performance during the previous three years of the exchange and how the host school has benefited from the exchange teacher’s presence; and
(ii) a document describing how the exchange teacher over the previous three years has engaged his or her classroom, the wider host school or host school district, or community through the cross-cultural activity component, if these activities are not already detailed in the exchange teacher’s annual reports.
(3) Sponsors must submit their extension request and supporting documentation for the extension to the Department no later than three months prior to the beginning of the desired extension period for the exchange teacher.
(4) Sponsor requests for extension must include proof of payment of the required non-refundable extension fee as set forth in § 62.17.
(5) The Department, at its discretion, may authorize a sponsor to extend an exchange teacher’s participation for either one or two additional years beyond the initial three-year exchange period. Sponsors must comply with all Department guidance on creating an extension record for the teacher within SEVIS.
(6) Sponsors that applied for a two-year extension on behalf of a host school and its exchange teacher and received permission from the Department only for a one-year extension may apply again to extend the program of that host school’s exchange teacher for one additional year by following the procedures set forth in paragraphs (k)(2)-(4) of this section. The sponsor should include with such additional extension request a copy of the prior extension request submitted to enable the initial one-year extension.
(l) Repeat participation. Foreign nationals who have successfully completed teacher exchange programs are eligible to participate in additional teacher exchange programs, provided that they have resided outside the United States for at least two years following the successful completion of their most recent teacher exchange program and continue to meet the eligibility requirements set forth in paragraph (d) of this section.
§ 62.25 Secondary school students.
(a) Purpose. This section governs Department of State designated exchange visitor programs under which foreign secondary school students are afforded the opportunity to study in the United States at accredited public or private secondary schools for an academic semester or an academic year, while living with American host families or residing at accredited U.S. boarding schools.
(b) Program sponsor eligibility. Eligibility for designation as a secondary school student exchange visitor program sponsor is limited to organizations:
(1) With tax-exempt status as conferred by the Internal Revenue Service pursuant to section 501(c)(3) of the Internal Revenue Code; and
(2) Which are United States citizens as such term is defined in § 62.2.
(c) Program eligibility. Secondary school student exchange visitor programs designated by the Department of State must:
(1) Require all exchange students to be enrolled and participating in a full course of study at an accredited academic institution;
(2) Allow entry of exchange students for not less than one academic semester (or quarter equivalency) and not more than two academic semesters (or quarter equivalency) duration; and
(3) Ensure that the program is conducted on a U.S. academic calendar year basis, except for students from countries whose academic year is opposite that of the United States. Exchange students may begin an exchange program in the second semester of a U.S. academic year only if specifically permitted to do so, in writing, by the school in which the exchange student is enrolled. In all cases, sponsors must notify both the host family and school prior to the exchange student’s arrival in the United States whether the placement is for an academic semester, an academic year, or a calendar year.
(d) Program administration. Sponsors must ensure that all organizational officers, employees, representatives, agents, and volunteers acting on their behalf:
(1) Are adequately trained. Sponsors must administer training for local coordinators that specifically includes, at a minimum, instruction in: Conflict resolution; procedures for handling and reporting emergency situations; awareness or knowledge of child safety standards; information on sexual conduct codes; procedures for handling and reporting allegations of sexual misconduct or any other allegations of abuse or neglect; and the criteria to be used to screen potential host families and exercise good judgment when identifying what constitutes suitable host family placements. In addition to their own training, sponsors must ensure that all local coordinators complete the Department of State mandated training module prior to their appointment as a local coordinator or assumption of duties. The Department of State training module will include instruction designed to provide a comprehensive understanding of the Exchange Visitor Program; its public diplomacy objectives; and the Secondary School Student category rules and regulations. Sponsors must demonstrate the individual’s successful completion of all initial training requirements and that annual refresher training is also successfully completed.
(2) Are adequately supervised. Sponsors must create and implement organization-specific standard operating procedures for the supervision of local coordinators designed to prevent or deter fraud, abuse, or misconduct in the performance of the duties of these employees/agents/volunteers. They must also have sufficient internal controls to ensure that such employees/agents/volunteers comply with such standard operating procedures.
(3) Have been vetted annually through a criminal background check (which must include a search of the Department of Justice’s National Sex Offender Public Registry);
(4) Place no exchange student with his or her relatives;
(5) Make no exchange student placement beyond 120 miles of the home of the local coordinator authorized to act on the sponsor’s behalf in both routine and emergency matters arising from that exchange student’s participation in the Exchange Visitor Program;
(6) Make no monetary payments or other incentives to host families;
(7) Provide exchange students with reasonable access to their natural parents and family by telephone and e-mail;
(8) Make certain that the exchange student’s government issued documents (i.e., passports, Forms DS-2019) are not removed from his/her possession;
(9) Conduct the host family orientation after the host family has been fully vetted and accepted;
(10) Refrain, without exception, from acting as:
(i) Both a host family and a local coordinator or area supervisor for an exchange student;
(ii) A host family for one sponsor and a local coordinator for another sponsor; or
(iii) A local coordinator for any exchange student over whom he/she has a position of trust or authority such as the student’s teacher or principal. This requirement is not applicable to a boarding school placement.
(11) Maintain, at minimum, a monthly schedule of personal contact with the exchange student. The first monthly contact between the local coordinator and the exchange student must be in person. All other contacts may take place in-person, on the phone, or via electronic mail and must be properly documented. The sponsor is responsible for ensuring that issues raised through such contacts are promptly and appropriately addressed.
(12) That a sponsor representative other than the local coordinator who recruited, screened and selected the host family visit the exchange student/host family home within the first or second month following the student’s placement in the home.
(13) Maintain, at a minimum, a monthly schedule of personal contact with the host family. At least once during the fall semester and at least once during the spring semester, (i.e., twice during the academic year) the contact by the local coordinator with the host family must be in person. All other contacts may take place in person, on the phone, or via electronic mail and must be properly documented. The sponsor is responsible for ensuring the issues raised through such contacts are promptly and appropriately addressed.
(14) That host schools are provided contact information for the local organizational representative (including name, direct phone number, and e-mail address), the program sponsor, and the Department’s Office of Designation; and
(15) Adhere to all regulatory provisions set forth in this part and all additional terms and conditions governing program administration that the Department may impose.
(e) Student selection. In addition to satisfying the requirements of § 62.10(a), sponsors must ensure that all participants in a designated secondary school student exchange visitor program:
(1) Are secondary school students in their home countries who have not completed more than 11 years of primary and secondary study, exclusive of kindergarten; or are at least 15 years of age, but not more than 18 years and six months of age as of the program start date;
(2) Demonstrate maturity, good character, and scholastic aptitude; and
(3) Have not previously participated in an academic year or semester secondary school student exchange program in the United States or attended school in the United States in either F-1 or J-1 visa status.
(f) Student enrollment. (1) Sponsors must secure prior written acceptance for the enrollment of any exchange student in a United States public or private secondary school. Such prior acceptance must:
(i) Be secured from the school principal or other authorized school administrator of the school or school system that the exchange student will attend; and
(ii) Include written arrangements concerning the payment of tuition or waiver thereof if applicable.
(2) Under no circumstance may a sponsor facilitate the entry into the United States of an exchange student for whom a written school placement has not been secured.
(3) Under no circumstance may a sponsor charge a student private school tuition if such arrangements are not finalized in writing prior to the issuance of Form DS-2019.
(4) Sponsors must maintain copies of all written acceptances for a minimum of three years and make such documents available for Department of State inspection upon request.
(5) Sponsors must provide the school with a translated “written English language summary” of the exchange student’s complete academic course work prior to commencement of school, in addition to any additional documents the school may require. Sponsors must inform the prospective host school of any student who has completed secondary school in his/her home country.
(6) Sponsors may not facilitate the enrollment of more than five exchange students in one school unless the school itself has requested, in writing, the placement of more than five students from the sponsor.
(7) Upon issuance of a Form DS-2019 to a prospective participant, the sponsor accepts full responsibility for securing a school and host family placement for the student, except in cases of voluntary student withdrawal or visa denial.
(g) Student orientation. In addition to the orientation requirements set forth at § 62.10, all sponsors must provide exchange students, prior to their departure from their home countries, with the following information:
(1) A summary of all operating procedures, rules, and regulations governing student participation in the exchange visitor program along with a detailed summary of travel arrangements;
(2) A copy of the Department’s welcome letter to exchange students;
(3) Age and language appropriate information on how to identify and report sexual abuse or exploitation;
(4) A detailed profile of the host family with whom the exchange student will be placed. The profile must state whether the host family is either a permanent placement or a temporary-arrival family;
(5) A detailed profile of the school and community in which the exchange student will be placed. The profile must state whether the student will pay tuition; and
(6) An identification card, that lists the exchange student’s name, United States host family placement address and telephone numbers (landline and cellular), sponsor name and main office and emergency telephone numbers, name and telephone numbers (landline and cellular) of the local coordinator and area representative, the telephone number of Department’s Office of Designation, and the Secondary School Student program toll free emergency telephone number. The identification card must also contain the name of the health insurance provider and policy number. Such cards must be corrected, reprinted, and reissued to the student if changes in contact information occur due to a change in the student’s placement.
(h) Student extra-curricular activities. Exchange students may participate in school sanctioned and sponsored extra-curricular activities, including athletics, if such participation is:
(1) Authorized by the local school district in which the student is enrolled; and
(2) Authorized by the state authority responsible for determination of athletic eligibility, if applicable. Sponsors shall not knowingly be party to a placement (inclusive of direct placements) based on athletic abilities, whether initiated by a student, a natural or host family, a school, or any other interested party.
(3) Any placement in which either the student or the sending organization in the foreign country is party to an arrangement with any other party, including receiving school personnel, whereby the student will attend a particular school or live with a particular host family must be reported to the particular school and the National Federation of State High School Associations prior to the first day of classes.
(i) Student employment. Exchange students may not be employed on either a full or part-time basis but may accept sporadic or intermittent employment such as babysitting or yard work.
(j) Host family application and selection. Sponsors must adequately screen and select all potential host families and at a minimum must:
(1) Provide potential host families with a detailed summary of the Exchange Visitor Program and of their requirements, obligations and commitment to host;
(2) Utilize a standard application form developed by the sponsor that includes, at a minimum, all data fields provided in Appendix F, “Information to be Collected on Secondary School Student Host Family Applications”. The form must include a statement stating that: “The income data collected will be used solely for the purposes of determining that the basic needs of the exchange student can be met, including three quality meals and transportation to and from school activities.” Such application form must be signed and dated at the time of application by all potential host family applicants. The host family application must be designed to provide a detailed summary and profile of the host family, the physical home environment (to include photographs of the host family home’s exterior and grounds, kitchen, student’s bedroom, bathroom, and family or living room), family composition, and community environment. Exchange students are not permitted to reside with their relatives.
(3) Conduct an in-person interview with all family members residing in the home where the student will be living;
(4) Ensure that the host family is capable of providing a comfortable and nurturing home environment and that the home is clean and sanitary; that the exchange student’s bedroom contains a separate bed for the student that is neither convertible nor inflatable in nature; and that the student has adequate storage space for clothes and personal belongings, reasonable access to bathroom facilities, study space if not otherwise available in the house and reasonable, unimpeded access to the outside of the house in the event of a fire or similar emergency. An exchange student may share a bedroom, but with no more than one other individual of the same sex.
(5) Ensure that the host family has a good reputation and character by securing two personal references from within the community from individuals who are not relatives of the potential host family or representatives of the sponsor (i.e., field staff or volunteers), attesting to the host family’s good reputation and character;
(6) Ensure that the host family has adequate financial resources to undertake hosting obligations and is not receiving needs-based government subsidies for food or housing;
(7) Verify that each member of the host family household 18 years of age and older, as well as any new adult member added to the household, or any member of the host family household who will turn eighteen years of age during the exchange student’s stay in that household, has undergone a criminal background check (which must include a search of the Department of Justice’s National Sex Offender Public Registry);
(8) Maintain a record of all documentation on a student’s exchange program, including but not limited to application forms, background checks, evaluations, and interviews, for all selected host families for a period of three years following program completion; and
(9) Ensure that a potential single adult host parent without a child in the home undergoes a secondary level review by an organizational representative other than the individual who recruited and selected the applicant. Such secondary review should include demonstrated evidence of the individual’s friends or family who can provide an additional support network for the exchange student and evidence of the individual’s ties to his/her community. Both the exchange student and his or her natural parents must agree in writing in advance of the student’s placement with a single adult host parent without a child in the home.
(k) Host family orientation. In addition to the orientation requirements set forth in § 62.10, sponsors must:
(1) Inform all host families of the philosophy, rules, and regulations governing the sponsor’s exchange visitor program, including examples of “best practices” developed by the exchange community;
(2) Provide all selected host families with a copy of the Department’s letter of appreciation to host families;
(3) Provide all selected host families with a copy of Department of State-promulgated Exchange Visitor Program regulations;
(4) Advise all selected host families of strategies for cross-cultural interaction and conduct workshops to familiarize host families with cultural differences and practices; and
(5) Advise host families of their responsibility to inform the sponsor of any and all material changes in the status of the host family or student, including, but not limited to, changes in address, finances, employment and criminal arrests.
(l) Host family placement. (1) Sponsors must secure, prior to the student’s departure from his or her home country, a permanent or arrival host family placement for each exchange student participant. Sponsors may not:
(i) Facilitate the entry into the United States of an exchange student for whom a host family placement has not been secured;
(ii) Place more than one exchange student with a host family without the express prior written consent of the host family, the natural parents, and the students being placed. Under no circumstance may more than two exchange students be placed with a host family, or in the home of a local coordinator, regional coordinator, or volunteer. Sponsors may not place students from the same countries or with the same native languages in a single home.
(2) Prior to the student’s departure from his or her home country, sponsors must advise both the exchange student and host family, in writing, of the respective family compositions and backgrounds of each, whether the host family placement is a permanent or arrival placement, and facilitate and encourage the exchange of correspondence between the two.
(3) In the event of unforeseen circumstances that necessitate a change of host family placement, the sponsor must document the reason(s) necessitating such change and provide the Department of State with an annual statistical summary reflecting the number and reason(s) for such change in host family placement in the program’s annual report.
(m) Advertising and marketing for the recruitment of host families. In addition to the requirements set forth in § 62.9 in advertising and promoting for host family recruiting, sponsors must:
(1) Utilize only promotional materials that professionally, ethically, and accurately reflect the sponsor’s purposes, activities, and sponsorship;
(2) Not publicize the need for host families via any public media with announcements, notices, advertisements, etc. that are not sufficiently in advance of the exchange student’s arrival, appeal to public pity or guilt, imply in any way that an exchange student will be denied participation if a host family is not found immediately, or identify photos of individual exchange students and include an appeal for an immediate family;
(3) Not promote or recruit for their programs in any way that compromises the privacy, safety or security of participants, families, or schools. Specifically, sponsors shall not include personal student data or contact information (including addresses, phone numbers or email addresses) or photographs of the student on Web sites or in other promotional materials; and
(4) Ensure that access to exchange student photographs and personally identifying information, either online or in print form, is only made available to potential host families who have been fully vetted and selected for program participation. Such information, if available online, must also be password protected.
(n) Reporting requirements. Along with the annual report required by regulations set forth at § 62.15, sponsors must file with the Department of State the following information:
(1) Sponsors must immediately report to the Department any incident or allegation involving the actual or alleged sexual exploitation or any other allegations of abuse or neglect of an exchange student. Sponsors must also report such allegations as required by local or state statute or regulation. Failure to report such incidents to the Department and, as required by state law or regulation, to local law enforcement authorities shall be grounds for the suspension and revocation of the sponsor’s Exchange Visitor Program designation;
(2) A report of all final academic year and semester program participant placements by August 31 for the upcoming academic year or January 15 for the Spring semester and calendar year. The report must be in the format directed by the Department and must include at a minimum, the exchange student’s full name, Form DS-2019 number (SEVIS ID #), host family placement (current U.S. address), school (site of activity) address, the local coordinator’s name and zip code, and other information the Department may request; and
(3) A report of all situations which resulted in the placement of an exchange student with more than one host family or in more than one school. The report must be in a format directed by the Department and include, at a minimum, the exchange student’s full name, Form DS-019 number (SEVIS ID #), host family placements (current U.S. address), schools (site of activity address), the reason for the change in placement, and the date of the move. This report is due by July 31 for the previous academic school year.
§ 62.26 Specialists.
(a) Introduction. These regulations govern experts in a field of specialized knowledge or skill coming to the United States for observing, consulting, or demonstrating special skills, except:
(1) Research scholars and professors, who are governed by regulations set forth at § 62.20;
(2) Short-term scholars, who are governed by regulations set forth at § 62.21; and
(3) Alien physicians in graduate medical education or training, who are governed by regulations set forth in § 62.27.
(b) Purpose. The Exchange Visitor Program promotes the interchange of knowledge and skills among foreign and American specialists, who are defined as experts in a field of specialized knowledge or skills, and who visit the United States for the purpose of observing, consulting, or demonstrating their special skills. It does so by providing foreign specialists the opportunity to observe American institutions and methods of practice in their professional fields, and to share their specialized knowledge with their American colleagues. The exchange of specialists promotes mutual enrichment, and furthers linkages among scientific institutions, government agencies, museums, corporations, libraries, and similar types of institutions. Such exchanges also enable visitors to better understand American culture and society and enhance American knowledge of foreign cultures and skills. This category is intended for exchanges with experts in such areas, for example, as mass media communication, environmental science, youth leadership, international educational exchange, museum exhibitions, labor law, public administration, and library science. This category is not intended for experts covered by the exchange visitor categories listed in paragraphs (a) (1) through (3) of this section.
(c) Designation. The Department of State may, in its discretion, designate bona fide programs satisfying the objectives in section (b) above as an exchange visitor program in the specialist category.
(d) Visitor eligibility. A foreign national shall be eligible to participate in an exchange visitor program as a specialist if the individual:
(1) Is an expert in a field of specialized knowledge or skill;
(2) Seeks to travel to the United States for the purpose of observing, consulting, or demonstrating his or her special knowledge or skills; and
(3) Does not fill a permanent or long-term position of employment while in the United States.
(e) Visitor selection. Sponsors shall adequately screen and select specialists prior to accepting them for the program, providing a formal selection process, including at a minimum:
(1) Evaluation of the qualifications of foreign nationals to determine whether they meet the definition of specialist as set forth in § 62.4(g); and
(2) Screening foreign nationals to ensure that the requirements of § 62.10(a) are satisfied.
(f) Program disclosure. Before the program begins, the sponsor shall provide the specialist, in addition to what is required in § 62.10(b), with:
(1) Information on the length and location(s) of his or her exchange visitor program;
(2) A summary of the significant components of the program; and
(3) A written statement which clearly states the stipend, if any, to be paid to the specialist.
(g) Issuance of Form IAP-66. The Form DS-2019 shall be issued only after the specialist has been accepted by the organization(s) with which he or she will participate in an exchange visitor program.
(h) Location of the exchange. The specialist shall participate in an exchange visitor program at the location(s) listed on his or her Form DS-2019.
(i) Duration of participation. The specialist shall be authorized to participate in the Exchange Visitor Program for the length of time necessary to complete the program, which shall not exceed one year.
§ 62.27 Alien physicians.
(a) Purpose. Pursuant to the Mutual Educational and Cultural Exchange Act, as amended by the Health Care Professions Act, Public Law 94-484, the Department of State facilitates exchanges for foreign medical graduates seeking to pursue graduate medical education or training at accredited schools of medicine or scientific institutions. The Department of State also facilitates exchanges of foreign medical graduates seeking to pursue programs involving observation, consultation, teaching, or research activities.
(b) Clinical exchange programs. The Educational Commission for Foreign Medical Graduates must sponsor alien physicians who wish to pursue programs of graduate medical education or training conducted by accredited U.S. schools of medicine or scientific institutions. Such Foreign Medical Graduates shall:
(1) Have adequate prior education and training to participate satisfactorily in the program for which they are coming to the United States;
(2) Be able to adapt to the educational and cultural environment in which they will be receiving their education or training;
(3) Have the background, needs, and experiences suitable to the program as required in § 62.10(a)(1);
(4) Have competency in oral and written English;
(5) Have passed either Parts I and II of the National Board of Medical Examiners Examination, the Foreign Medical Graduate Examination in the Medical Sciences, the United States Medical Licensing Examination, Step I and Step II, or the Visa Qualifying Examination (VQE) prepared by the National Board of Medical Examiners, administered by the Educational Commission for Foreign Medical Graduates. [NB – Graduates of a school of medicine accredited by the Liaison Committee on Medical Education are exempted by law from the requirement of passing either Parts I and II of the National Board of Medical Examiners Examination or the Visa Qualifying Examination (VQE)]; and
(6) Provide a statement of need from the government of the country of their nationality or last legal permanent residence. Such statement must provide written assurance, satisfactory to the Secretary of Health and Human Services, that there is a need in that country for persons with the skills the alien physician seeks to acquire and shall be submitted to the Educational Commission for Foreign Medical Graduates by the participant’s government. The statement of need must bear the seal of the concerned government and be signed by a duly designated official of the government. The text of such statement of need shall read as follows:
Name of applicant for Visa: ______. There currently exists in (Country) a need for qualified medical practitioners in the speciality of ______. (Name of applicant for Visa) has filed a written assurance with the government of this country that he/she will return to this country upon completion of training in the United States and intends to enter the practice of medicine in the specialty for which training is being sought. Stamp (or Seal and signature) of issuing official of named country.
(7) Submit an agreement or contract from a U.S. accredited medical school, an affiliated hospital, or a scientific institution to provide the accredited graduate medical education. The agreement or contract must be signed by both the alien physician and the official responsible for the training.
(c) Non-clinical exchange programs. (1) A United States university or academic medical center which has been designated an exchange visitor program by the Secretary of State of the Department of State is authorized to issue From DS-2019 to alien physicians to enable them to come to the United States for the purposes of observation, consultation, teaching, or research if:
(i) The responsible officer or duly designated alternate of the exchange visitor program involved signs and appends to the Form DS-2019 a certification which states “this certifies that the program in which (name of physician) is to be engaged is solely for the purpose of observation, consultation, teaching, or research and that no element of patient care is involved” or
(ii) The dean of the involved accredited United States medical school or his or her designee certifies to the following five points and such certification is appended to the Form DS-2019 issued to the perspective exchange visitor alien physician:
(A) The program in which (name of physician) will participate is predominantly involved with observation, consultation, teaching, or research.
(B) Any incidental patient contact involving the alien physician will be under the direct supervision of a physician who is a U.S. citizen or resident alien and who is licensed to practice medicine in the State of ______.
(C) The alien physician will not be given final responsibility for the diagnosis and treatment of patients.
(D) Any activities of the alien physician will conform fully with the State licensing requirements and regulations for medical and health care professionals in the State in which the alien physician is pursuing the program.
(E) Any experience gained in this program will not be creditable towards any clinical requirements for medical specialty board certification.
(2) The Educational Commission for Foreign Medical Graduates may also issue Form DS-2019 to alien physicians who are coming to the United States to participate in a program of observation, consultation, teaching, or research provided the required letter of certification as outlined in this paragraph is appended to the Form DS-2019.
(d) Public health and preventive medicine programs. A United States university, academic medical center, school of public health, or other public health institution which has been designated as an exchange visitor program sponsor by the Secretary of State of the Department of State is authorized to issue Forms DS-2019 to alien physicians to enable them to come to the United States for the purpose of entering into those programs which do not include any clinical activities involving direct patient care. Under these circumstances, the special eligibility requirements listed in paragraphs (b) and (c) of this section need not be met. The responsible officer or alternate responsible officer of the exchange visitor program involved shall append a certification to the Form DS-2019 which states.
This certifies that the program in which (name of physician) is to be engaged does not include any clinical activities involving direct patient care.
(e) Duration of participation. (1) The duration of an alien physician’s participation in a program of graduate medical education or training as described in paragraph (b) of this section is limited to the time typically required to complete such program. Duration shall be determined by the Secretary of State at the time of the alien physician’s entry into the United States. Such determination shall be based on criteria established in coordination with the Secretary of Health and Human Services and which take into consideration the requirements of the various medical specialty boards as set forth by the Accreditation Council for Graduate Medical Education (ACGME).
(2) Duration of participation is limited to seven years unless the alien physician has demonstrated to the satisfaction of the Secretary of State that the country to which the alien physician will return at the end of additional specialty education or training has an exceptional need for an individual with such additional qualification.
(3) Subject to the limitations set forth above, duration of participation may, for good cause shown, be extended beyond the period of actual training or education to include the time necessary to take an examination required for certification by a specialty board.
(4) The Secretary of State may include within the duration of participation a period of supervised medical practice in the United States if such practice is an eligibility requirement for certification by a specialty board.
(i) Alien physicians shall be permitted to undertake graduate medical education or training in a specialty or subspecialty program whose board and/or accreditation requirements are not published if the program requirements are certified to the Secretary of State by the ACGME in accordance with criteria established by the Educational Commission for Foreign Medical Graduates (ECFMG) and ACGME.
(ii) The Secretary of State may, for good cause shown, grant an extension of the program to permit an alien physician to repeat one year of clinical medical training.
(5) The alien physician must furnish the Attorney General each year with an affidavit (Form I-644) that attests the alien physician:
(i) Is in good standing in the program of graduate medical education or training in which the alien physician is participating; and
(ii) Will return to the country of his nationality or last legal permanent resident upon completion of the education or training for which he came to the United States.
(f) Change of program. The alien physician may, once and not later than two years after the date the alien physician enters the United States as an exchange visitor or acquires exchange visitor status, change his designated program of graduate medical education or training if the Secretary of State approves the change and if the requirements of paragraphs (b) and (e) of this section are met for the newly designated specialty.
(g) Applicability of section 212(e) of the Immigration and Nationality Act. (1) Any exchange visitor physician coming to the United States on or after January 10, 1977 for the purpose of receiving graduate medical education or training is automatically subject to the two-year home-country physical presence requirement of section 212(e) of the Immigration and Nationality Act, as amended. Such physicians are not eligible to be considered for section 212(e) waivers on the basis of “No Objection” statements issued by their governments.
(2) Alien physicians coming to the United States for the purpose of observation, consultation, teaching, or research are not automatically subject to the two-year home-country physical presence requirement of section 212(e) of the Immigration and Nationality Act, as amended, but may be subject to this requirement if they are governmentally financed or pursuing a field of study set forth on their countries’ Exchange Visitor Skills List. Such alien physicians are eligible for consideration of waivers under section 212(e) of the Immigration and Nationality Act, as amended, on the basis of “No Objection” statements submitted by their governments in their behalf through diplomatic channels to the Secretary of State of the Department of State.
§ 62.28 International visitors.
(a) Purpose. The international visitor category is for the exclusive use of the Department of State. Programs under this section are for foreign nationals who are recognized or potential leaders and are selected by the Department of State to participate in observation tours, discussions, consultation, professional meetings, conferences, workshops, and travel. These programs are designed to enable the international visitors to better understand American culture and society and contribute to enhanced American knowledge of foreign cultures. The category is for people-to-people programs which seek to develop and strengthen professional and personal ties between key foreign nationals and Americans and American institutions.
(b) Selection. The Department of State and third parties assisting the Department of State shall adequately screen and select prospective international visitors to determine compliance with § 62.10(a) and the visitor eligibility requirements set forth below.
(c) Visitor eligibility. An individual participating in an exchange visitor program as an international visitor shall be:
(1) Selected by the Department of State;
(2) Engaged in consultation, observation, research, training, or demonstration of special skills; and
(3) A recognized or potential leader in a field of specialized knowledge or skill.
(d) Program disclosure. At the beginning of the program, the sponsor shall provide the international visitor with:
(1) Information on the length and location(s) of his or her exchange visitor program; and
(2) A summary of the significant components of the program.
(e) Issuance of Form DS-2019. The Form DS-2019 shall be issued only after the international visitor has been selected by the Department of State.
(f) Location of the exchange. The international visitor shall participate in an exchange visitor program at locations approved by the Department of State.
(g) Duration of participation. The international visitor shall be authorized to participate in the Exchange Visitor Program for the length of time necessary to complete the program, which shall not exceed one year.
§ 62.29 Government visitors.
(a) Purpose. The government visitor category is for the exclusive use of the U.S. federal, state, or local government agencies. Programs under this section are for foreign nationals who are recognized as influential or distinguished persons, and are selected by U.S. federal, state, or local government agencies to participate in observation tours, discussions, consultation, professional meetings, conferences, workshops, and travel. These are people-to-people programs designed to enable government visitors to better understand American culture and society, and to contribute to enhanced American knowledge of foreign cultures. The objective is to develop and strengthen professional and personal ties between key foreign nationals and Americans and American institutions. The government visitor programs are for such persons as editors, business and professional persons, government officials, and labor leaders.
(b) Designation. The Department of State may, in its sole discretion, designate as sponsors U.S. federal, state, and local government agencies which offer foreign nationals the opportunity to participate in people-to-people programs which promote the purpose as set forth in (a) above.
(c) Selection. Sponsors shall adequately screen and select prospective government visitors to determine compliance with § 62.10(a) and the visitor eligibility requirements set forth below.
(d) Visitor eligibility. An individual participating in an exchange visitor program as a government visitor shall be:
(1) Selected by a U.S. federal, state, and local government agency;
(2) Engaged in consultation, observation, training, or demonstration of special skills; and
(3) An influential or distinguished person.
(e) Program disclosure. Before the beginning of the program, the sponsor shall provide the government visitor with:
(1) Information on the length and location(s) of his or her exchange visitor program;
(2) A summary of the significant components of the program; and
(3) A written statement which clearly states the stipend, if any, to be paid to the government visitor.
(f) Issuance of Form DS-2019. The Form DS-2019 shall be issued only after the government visitor has been selected by a U.S. federal, state, or local government agency and accepted by the private and/or public organization(s) with whom he or she will participate in the exchange visitor program.
(g) Location of the exchange. The government visitor shall participate in an exchange visitor program at the locations listed on his or her Form DS-2019.
(h) Duration of participation. The government visitor shall be authorized to participate in the Exchange Visitor Program for the length of time necessary to complete the program, which shall not exceed eighteen months.
§ 62.30 Camp counselors.
(a) Introduction. In order to promote diverse opportunities for participation in educational and cultural exchange programs, the Department of State designates exchange sponsors to facilitate the entry of foreign nationals to serve as counselors in U.S. summer camps. These programs promote international understanding by improving American knowledge of foreign cultures while enabling foreign participants to increase their knowledge of American culture. The foreign participants are best able to carry out this objective by serving as counselors per se, that is, having direct responsibility for supervision of groups of American youth and of activities that bring them into interaction with their charges. While it is recognized that some non-counseling chores are an essential part of camp life for all counselors, this program is not intended to assist American camps in bringing in foreign nationals to serve as administrative personnel, cooks, or menial laborers, such as dishwashers or janitors.
(b) Participant eligibility. Participation in camp counselor exchange programs is limited to foreign nationals who:
(1) Are at least 18 years of age;
(2) Are bona fide youth workers, students, teachers, or individuals with specialized skills; and
(c) Participant selection. In addition to satisfying the requirements in § 62.10(a), sponsors shall adequately screen all international candidates for camp counselor programs and at a minimum:
(1) Conduct an in-person interview; and
(2) Secure references from a participant’s employer or teacher regarding his or her suitability for participation in a camp counselor exchange.
(d) Participant orientation. Sponsors shall provide participants, prior to their departure from the home country, detailed information regarding:
(1) Duties and responsibilities relating to their service as a camp counselor;
(2) Contractual obligations relating to their acceptance of a camp counselor position; and
(3) Financial compensation for their service as a camp counselor.
(e) Participant placements. Sponsors shall place eligible participants at camping facilities which are:
(1) Accredited;
(2) A member in good standing of the American Camping Association;
(3) Officially affiliated with a nationally recognized non-profit organization; or
(4) Have been inspected, evaluated, and approved by the sponsor.
(f) Participant compensation. Sponsors shall ensure that international participants receive pay and benefits commensurate with those offered to their American counterparts.
(g) Participant supervision. Sponsors shall provide all participants with a phone number which allows 24 hour immediate contact with the sponsor.
(h) Program administration. Sponsors shall:
(1) Comply with all provisions set forth in subpart A of this part;
(2) Not facilitate the entry of any participant for a program of more than four months duration; and
(3) Under no circumstance facilitate the entry into the United States of a participant for whom a camp placement has not been pre-arranged.
(i) Placement report. In lieu of listing the name and address of the camp facility at which the participant is placed on Form DS-2019, sponsors shall submit to the Department of State, no later than July 1st of each year, a report of all participant placements. Such report shall reflect the participant’s name, camp placement, and the number of times the participant has previously participated in a camp counselor exchange.
(j) In order to ensure that as many different individuals as possible are recruited for participation in camp counselor programs, sponsors shall limit the number of participants who have previously participated more than once in any camp counselor exchange to not more than ten percent of the total number of participants that the sponsor placed in the immediately preceding year.
§ 62.31 Au pairs.
(a) Introduction. This section governs Department of State-designated exchange visitor programs under which foreign nationals are afforded the opportunity to live with an American host family and participate directly in the home life of the host family. All au pair participants provide child care services to the host family and attend a U.S. post-secondary educational institution. Au pair participants provide up to forty-five hours of child care services per week and pursue not less than six semester hours of academic credit or its equivalent during their year of program participation. Au pairs participating in the EduCare program provide up to thirty hours of child care services per week and pursue not less than twelve semester hours of academic credit or its equivalent during their year of program participation.
(b) Program designation. The Department of State may, in its sole discretion, designate bona fide programs satisfying the objectives set forth in paragraph (a) of this section. Such designation shall be for a period of two years and may be revoked by the Department of State for good cause.
(c) Program eligibility. Sponsors designated by the Department of State to conduct an au pair exchange program shall;
(1) Limit the participation of foreign nationals in such programs to not more than one year;
(2) Limit the number of hours an EduCare au pair participant is obligated to provide child care services to not more than 10 hours per day or more than 30 hours per week and limit the number of hours all other au pair participants are obligated to provide child care services to not more than 10 hours per day or more than 45 hours per week;
(3) Require that EduCare au pair participants register and attend classes offered by an accredited U.S. post-secondary institution for not less than twelve semester hours of academic credit or its equivalent and that all other au pair participants register and attend classes offered by an accredited U.S. post-secondary institution for not less than six semester hours of academic credit or its equivalent;
(4) Require that all officers, employees, agents, and volunteers acting on their behalf are adequately trained and supervised;
(5) Require that the au pair participant is placed with a host family within one hour’s driving time of the home of the local organizational representative authorized to act on the sponsor’s behalf in both routine and emergency matters arising from the au pair’s participation in their exchange program;
(6) Require that each local organizational representative maintain a record of all personal monthly contacts (or more frequently as required) with each au pair and host family for which he or she is responsible and issues or problems discussed;
(7) Require that all local organizational representatives contact au pair participants and host families twice monthly for the first two months following a placement other than the initial placement for which the au pair entered the United States.
(8) Require that local organizational representatives not devoting their full time and attention to their program obligations are responsible for no more than fifteen au pairs and host families; and
(9) Require that each local organizational representative is provided adequate support services by a regional organizational representative.
(d) Au pair selection. In addition to satisfying the requirements of § 62.10(a), sponsors shall ensure that all participants in a designated au pair exchange program:
(1) Are between the ages of 18 and 26;
(2) Are a secondary school graduate, or equivalent;
(3) Are proficient in spoken English;
(4) Are capable of fully participating in the program as evidenced by the satisfactory completion of a physical;
(5) Have been personally interviewed, in English, by an organizational representative who shall prepare a report of the interview which shall be provided to the host family; and
(6) Have successfully passed a background investigation that includes verification of school, three, non-family related personal and employment references, a criminal background check or its recognized equivalent and a personality profile. Such personality profile will be based upon a psychometric test designed to measure differences in characteristics among applicants against those characteristics considered most important to successfully participate in the au pair program.
(e) Au pair placement. Sponsors shall secure, prior to the au pair’s departure from the home country, a host family placement for each participant. Sponsors shall not:
(1) Place an au pair with a family unless the family has specifically agreed that a parent or other responsible adult will remain in the home for the first three days following the au pair’s arrival;
(2) Place an au pair with a family having a child aged less than three months unless a parent or other responsible adult is present in the home;
(3) Place an au pair with a host family having children under the age of two, unless the au pair has at least 200 hours of documented infant child care experience. An au pair participating in the EduCare program shall not be placed with a family having pre-school children in the home unless alternative full-time arrangements for the supervision of such pre-school children are in place;
(4) Place an au pair with a host family having a special needs child, as so identified by the host family, unless the au pair has specifically identified his or her prior experience, skills, or training in the care of special needs children and the host family has reviewed and acknowledged in writing the au pair’s prior experience, skills, or training so identified;
(5) Place an au pair with a host family unless a written agreement between the au pair and the host family detailing the au pair’s obligation to provide child care has been signed by both the au pair and the host family prior to the au pair’s departure from his or her home country. Such agreement shall clearly state whether the au pair is an EduCare program participant or not. Such agreement shall limit the obligation to provide child care services to not more than 10 hours per day or more than 45 hours per week unless the au pair is an EduCare participant. Such agreement shall limit the obligation of an EduCare participant to provide child care service to not more than 10 hours per day or more than 30 hours per week.
(6) Place the au pair with a family who cannot provide the au pair with a suitable private bedroom; and
(7) Place an au pair with a host family unless the host family has interviewed the au pair by telephone prior to the au pair’s departure from his or her home country.
(f) Au pair orientation. In addition to the orientation requirements set forth at § 62.10, all sponsors shall provide au pairs, prior to their departure from the home country, with the following information:
(1) A copy of all operating procedures, rules, and regulations, including a grievance process, which govern the au pair’s participation in the exchange program;
(2) A detailed profile of the family and community in which the au pair will be placed;
(3) A detailed profile of the educational institutions in the community where the au pair will be placed, including the financial cost of attendance at these institutions;
(4) A detailed summary of travel arrangements; and
(5) A copy of the Department of State’s written statement and brochure regarding the au pair program.
(g) Au pair training. Sponsors shall provide the au pair participant with child development and child safety instruction, as follows:
(1) Prior to placement with the host family, the au pair participant shall receive not less than eight hours of child safety instruction no less than 4 of which shall be infant-related; and
(2) Prior to placement with the American host family, the au pair participant shall receive not less than twenty-four hours of child development instruction of which no less than 4 shall be devoted to specific training for children under the age of two.
(h) Host family selection. Sponsors shall adequately screen all potential host families and at a minimum shall:
(1) Require that the host parents are U.S. citizens or legal permanent residents;
(2) Require that host parents are fluent in spoken English;
(3) Require that all adult family members resident in the home have been personally interviewed by an organizational representative;
(4) Require that host parents and other adults living full-time in the household have successfully passed a background investigation including employment and personal character references;
(5) Require that the host family have adequate financial resources to undertake all hosting obligations;
(6) Provide a written detailed summary of the exchange program and the parameters of their and the au pair’s duties, participation, and obligations; and
(7) Provide the host family with the prospective au pair participant’s complete application, including all references.
(i) Host family orientation. In addition to the requirements set forth at § 62.10 sponsors shall:
(1) Inform all host families of the philosophy, rules, and regulations governing the sponsor’s exchange program and provide all families with a copy of the Department of State’s written statement and brochure regarding the au pair program;
(2) Provide all selected host families with a complete copy of Department of State-promulgated Exchange Visitor Program regulations, including the supplemental information thereto;
(3) Advise all selected host families of their obligation to attend at least one family day conference to be sponsored by the au pair organization during the course of the placement year. Host family attendance at such a gathering is a condition of program participation and failure to attend will be grounds for possible termination of their continued or future program participation; and
(4) Require that the organization’s local counselor responsible for the au pair placement contacts the host family and au pair within forth-eight hours of the au pair’s arrival and meets, in person, with the host family and au pair within two weeks of the au pair’s arrival at the host family home.
(j) Wages and hours. Sponsors shall require that au pair participants:
(1) Are compensated at a weekly rate based upon 45 hours of child care services per week and paid in conformance with the requirements of the Fair Labor Standards Act as interpreted and implemented by the United States Department of Labor. EduCare participants shall be compensated at a weekly rate that is 75% of the weekly rate paid to non-EduCare participants;
(2) Do not provide more than 10 hours of child care per day, or more than 45 hours of child care in any one week. EduCare participants may not provide more than 10 hours of child care per day or more than 30 hours of child care in any one week;
(3) Receive a minimum of one and one half days off per week in addition to one complete weekend off each month; and
(4) Receive two weeks of paid vacation.
(k) Educational component. Sponsors must:
(1) Require that during their initial period of program participation, all EduCare au pair participants complete not less than 12 semester hours (or their equivalent) of academic credit in formal educational settings at accredited U.S. post-secondary institutions and that all other au pair participants complete not less than six semester hours (or their equivalent) of academic credit in formal educational settings at accredited U.S. post-secondary institutions. As a condition of program participation, host family participants must agree to facilitate the enrollment and attendance of au pairs in accredited U.S. post secondary institutions and to pay the cost of such academic course work in an amount not to exceed $1,000 for EduCare au pair participants and in an amount not to exceed $500 for all other au pair participants.
(2) Require that during any extension of program participation, all participants (i.e., Au Pair or EduCare) satisfy an additional educational requirement, as follows:
(i) For a nine or 12-month extension, all au pair participants and host families shall have the same obligation for coursework and payment therefore as is required during the initial period of program participation.
(ii) For a six-month extension, EduCare au pair participants must complete not less than six semester hours (or their equivalent) of academic credit in formal educational settings at accredited U.S. post-secondary institutions. As a condition of participation, host family participants must agree to facilitate the enrollment and attendance of au pairs at accredited U.S. post secondary institutions and to pay the cost of such academic coursework in an amount not to exceed $500. All other au pair participants must complete not less than three semester hours (or their equivalent) of academic credit in formal educational settings at accredited U.S. post-secondary institutions. As a condition of program participation, host family participants must agree to facilitate the enrollment and attendance of au pairs at accredited U.S. post secondary institutions and to pay the cost of such academic coursework in an amount not to exceed $250.
(l) Monitoring. Sponsors shall fully monitor all au pair exchanges, and at a minimum shall:
(1) Require monthly personal contact by the local counselor with each au pair and host family for which the counselor is responsible. Counselors shall maintain a record of this contact;
(2) Require quarterly contact by the regional counselor with each au pair and host family for which the counselor is responsible. Counselors shall maintain a record of this contact;
(3) Require that all local and regional counselors are appraised of their obligation to report unusual or serious situations or incidents involving either the au pair or host family; and
(4) Promptly report to the Department of State any incidents involving or alleging a crime of moral turpitude or violence.
(m) Reporting requirements. Along with the annual report required by regulations set forth at § 62.17, sponsors shall file with the Department of State the following information:
(1) A summation of the results of an annual survey of all host family and au pair participants regarding satisfaction with the program, its strengths and weaknesses;
(2) A summation of all complaints regarding host family or au pair participation in the program, specifying the nature of the complaint, its resolution, and whether any unresolved complaints are outstanding;
(3) A summation of all situations which resulted in the placement of au pair participant with more than one host family;
(4) A report by a certified public accountant, conducted pursuant to a format designated by the Department of State, attesting to the sponsor’s compliance with the procedures and reporting requirements set forth in this subpart;
(5) A report detailing the name of the au pair, his or her host family placement, location, and the names of the local and regional organizational representatives; and
(6) A complete set of all promotional materials, brochures, or pamphlets distributed to either host family or au pair participants.
(n) Sanctions. In addition to the sanctions provisions set forth at § 62.50, the Department of State may undertake immediate program revocation procedures upon documented evidence that a sponsor has failed to:
(1) Comply with the au pair placement requirements set forth in paragraph (e) of this section;
(2) Satisfy the selection requirements for each individual au pair as set forth in paragraph (d) of this section; and
(3) Enforce and monitor host family’s compliance with the stipend and hours requirements set forth in paragraph (j) of this section.
(o) Extension of program. The Department, in its sole discretion, may approve extensions for au pair participants beyond the initial 12-month program. Applications to the Department for extensions of six, nine, or 12 months, must be received by the Department not less than 30 calendar days prior to the expiration of the exchange visitor’s initial authorized stay in either the Au Pair or EduCare program (i.e., 30-calendar days prior to the program end date listed on the exchange visitor’s Form DS-2019). The request for an extension beyond the maximum duration of the initial 12-month program must be submitted electronically in the Department of Homeland Security’s Student and Exchange Visitor Information System (SEVIS). Supporting documentation must be submitted to the Department on the sponsor’s organizational letterhead and contain the following information:
(1) Au pair’s name, SEVIS identification number, date of birth, the length of the extension period being requested;
(2) Verification that the au pair completed the educational requirements of the initial program; and
(3) Payment of the required non-refundable fee (see 22 CFR 62.90) via Pay.gov.
(p) Repeat participation. A foreign national who enters the United States as an au pair Exchange Visitor Program participant and who has successfully completed his or her program is eligible to participate again as an au pair participant, provided that he or she has resided outside the United States for at least two years following completion of his or her initial au pair program.
§ 62.32 Summer work travel.
(a) Introduction. The regulations in this section (in combination with any other provisions of 22 CFR part 62, as applicable) govern participation in Summer Work Travel programs conducted by Department of State-designated sponsors pursuant to the authority granted the Department of State under Public Law 105-277.
(b) Purpose. The purpose of this program is to provide foreign college and university students with opportunities to interact with U.S. citizens, experience U.S. culture while sharing their own cultures with Americans they meet, travel in the United States, and work in jobs that require minimal training and are seasonal or temporary in order to earn funds to help defray a portion of their expenses. Employment is of a seasonal nature when the required service is tied to a certain time of the year by an event or pattern and requires labor levels above and beyond existing worker levels. Employment is of a temporary nature when an employer’s need for the duties to be performed is a one-time occurrence, a peak load need, or an intermittent need. It is the nature of employers’ needs, not the nature of the duties that is controlling.
(c) Duration of participation. Summer Work Travel participants are authorized to participate in the Exchange Visitor Program for up to four months during the long break between academic years as determined by the Department of State. Extensions of program participation are not permitted.
(d) Participant screening and selection. In addition to satisfying the requirements set forth at § 62.10(a), sponsors are solely responsible for adequately screening and making the final selection. The screening process requires that sponsors (or vetted foreign entities acting on their behalf) at a minimum must:
(1) Conduct and document interviews with potential participants either in-person or by video-conference;
(2) Verify proficiency in conversational English and reading comprehension through either recognized language tests administered by academic institutions or English language schools or through the required documented interviews;
(3) Select applicants who demonstrate their intention to participate in the cultural aspects of the Summer Work Travel Program.
(4) Confirm that at the time of application, applicants (including final year students) are enrolled full-time and pursuing studies at accredited post-secondary, classroom-based, academic institutions physically located outside of the United States and have successfully completed at least one semester, or equivalent, of post-secondary academic study.
(e) Participant orientation. In addition to satisfying the requirements set forth at § 62.10(b) and (c), sponsors must provide program participants, prior to participants’ departures from their home countries, the following information and/or documentation:
(1) A copy of the Department of State’s Summer Work Travel Participant Letter;
(2) A copy of the Department of State’s Summer Work Travel Program Brochure;
(3) The Department of State’s toll-free help line telephone number;
(4) The sponsor’s 24/7 immediate contact telephone number;
(5) Information advising participants of their obligations to notify their sponsors within ten days after they arrive in the United States and within ten days after they initially secure or change residences;
(6) Information advising participants that they may not begin working at initial, replacement, or additional jobs until their sponsors have verified the terms and conditions of such employment and fully vetted their host employers as set forth at paragraph (n) of this section;
(7) For participants with jobs secured prior to departing from selected home countries, documentation explaining the terms and conditions of such jobs and providing information about available housing and transportation to and from work;
(8) Information explaining the cultural component of the Summer Work Travel Program, including guidance on how to best experience U.S. culture and/or descriptions of cultural opportunities arranged by the sponsor; and
(9) Information explaining that sponsors will terminate the programs of participants who fail to comply with enumerated program regulations (i.e., reporting their arrivals, reporting changes of residence, not starting work at unverified jobs, responding to sponsor monthly outreach/monitoring efforts).
(f) Cultural exchange. (1) Sponsors must ensure that all participants have opportunities to work alongside U.S. citizens and interact regularly with U.S. citizens to experience U.S. culture during the workday portion of their Summer Work Travel programs; and
(2) Sponsors must ensure that all participants have opportunities to engage in cultural activities or events outside of work by planning, initializing, and carrying out events or other activities that provide participants’ exposure to U.S. culture.
(g) Participant placement. (1) Sponsors and third parties acting on their behalf may not pay or otherwise provide any incentive to employers to accept program participants for job placements with such employers.
(2) Sponsors must confirm initial, replacement, and additional jobs placements of all Summer Work Travel Program participants before participants may start work by verifying, at a minimum, the terms and conditions of such employment and fully vetting their host employers as set forth at paragraph (n) of this section. Once participants have arrived in the United States and identified initial, replacement, or additional jobs, sponsors must vet such jobs within 72 hours.
(3) Sponsors must not pose obstacles to job changes, but must offer reasonable assistance to participants wishing to change jobs regardless of whether their jobs were secured by the sponsors (direct-placed) or by the participants (self-placed).
(4) Sponsors may place participants only in jobs that:
(i) Are seasonal or temporary as defined in paragraph (b) of this section; and
(ii) Provide opportunities for regular communication and interaction with U.S. citizens and allow participants to experience U.S. culture.
(5) Sponsors may not place participants in jobs:
(i) That require licensing;
(ii) That are on the program exclusion list set forth at paragraph (h) of this section; or
(iii) For which there is another specific J visa category (e.g., Camp Counselor, Trainee, Intern).
(6) Sponsors may not place participants with staffing agencies unless the placements meet the following three criteria:
(i) Participants must be employees of and paid by the staffing agencies;
(ii) Staffing agencies must provide full-time, primary, on-site supervision of the participants;
(iii) Staffing agencies must effectively control the work sites, e.g., have hands-on management responsibility for the participants.
(7) Sponsors may not place participants with employers that fill non-seasonal or non-temporary job openings with exchange visitors with staggered vacation schedules.
(8) Sponsors must use extra caution when placing students in positions at employers in lines of business that are frequently associated with trafficking persons (e.g., modeling agencies, housekeeping, janitorial services).
(9) Sponsors must consider the availability of suitable, affordable housing (e.g., that meets local codes and ordinances) and reliable, affordable, and convenient transportation to and from work when making job placements.
(i) If employers do not provide or arrange housing and/or transportation, or if participants decline employer-provided housing or transportation, sponsors must actively and immediately assist participants with arranging appropriate housing and transportation.
(ii) If employers provide housing and/or transportation to and from work, job offers must include details of all such arrangements, including the cost to participants; whether such arrangements deduct such costs from participants’ wages; and the market value of housing and/or transportation in accordance with the Fair Labor Standards Act regulations set forth at 29 CFR part 531, if they are considered part of the compensation packages.
(10) For participants who are nationals of non-Visa Waiver Program countries and participants who are nationals of Visa Waiver Program countries with job placements screened in advance by the sponsors (direct placement) or jobs found by the participants (self-placement), prior to issuing Form DS-2019, sponsors must vet the potential employers as set forth at paragraph (n) of this section, confirm the terms and conditions of the job offers, and input complete and correct data into the Student and Exchange Visitor Information System (SEVIS) pursuant to the requirements set forth in § 62.70(f).
(11) Sponsors of applicants who are nationals of Visa Waiver Program countries and who have not secured jobs prior to departing from their home countries must:
(i) Ensure that such participants receive pre-departure information that explains how to seek employment and secure lodging in the United States, and clearly identifies the criteria for appropriate jobs set forth at paragraph (g) of this section and the categories of employment and positions that are on the program exclusion list set forth at paragraph (h) of this section;
(ii) Ensure that such participants have sufficient financial resources to support themselves during their searches for employment;
(iii) Assist participants who have not found suitable employment within one week of commencing their job searches;
(iv) Instruct participants of their obligation to notify their sponsors when they obtain job offers (and that they cannot start such jobs until the sponsors vet them); and
(v) Promptly (i.e., within 72 hours) confirm the initial jobs of such participants, at a minimum, by verifying the terms and conditions of such employment and fully vetting their host employers as set forth at paragraph (n) of this section.
(h) Program exclusions. Sponsors must not place participants:
(1) In positions that could bring notoriety or disrepute to the Exchange Visitor Program;
(2) In sales positions that require participants to purchase inventory that they must sell in order to support themselves;
(3) In domestic help positions in private homes (e.g., child care, elder care, gardener, chauffeur);
(4) As pedicab or rolling chair drivers or operators;
(5) As operators or drivers of vehicles or vessels for which drivers’ licenses are required regardless of whether they carry passengers or not;
(6) In positions related to clinical care that involves patient contact;
(7) In any position in the adult entertainment industry (including, but not limited to jobs with escort services, adult book/video stores, and strip clubs);
(8) In positions requiring work hours that fall predominantly between 10:00 p.m. and 6:00 a.m.;
(9) In positions declared hazardous to youth by the Secretary of Labor at Subpart E of 29 CFR part 570;
(10) In positions that require sustained physical contact with other people and/or adherence to the Centers for Disease Control and Prevention’s Universal Blood and Body Fluid Precautions guidelines (e.g., body piercing, tattooing, massage, manicure);
(11) In positions that are substantially commission-based and thus do not guarantee that participants will be paid minimum wage in accordance with federal and state standards;
(12) In positions involved in gaming and gambling that include direct participation in wagering and/or betting;
(13) In positions in chemical pest control, warehousing, catalogue/online order distribution centers;
(14) In positions with travelling fairs or itinerant concessionaires;
(15) In positions for which there is another specific J category (e.g., camp counselor, intern, trainee); or
(16) After November 1, 2012, in positions in the North American Industry Classification System’s (NAICS) Goods-Producing Industries occupational categories industry sectors 11, 21, 23, 31-33 numbers (set forth at http://www.bls.gov/iag/tgs/iag_index_naics.htm).
(i) Participant compensation. (1) Sponsors must inform program participants of Federal, State, and Local Minimum Wage requirements, and ensure that at a minimum, participants are compensated at the higher of:
(i) The applicable Federal, State, or Local Minimum Wage (including overtime); or
(ii) Pay and benefits commensurate with those offered to their similarly situated U.S. counterparts.
(2) Sponsors must demonstrate that participants are also compensated according to the above standards in the following (and similar) situations:
(i) The host employers provide housing and/or transportation as part of participants’ compensation, but the compensation package does not explain that the lower hourly wage reflects such benefits; or
(ii) The employers compensate participants on a “piece” basis (e.g., number of rooms cleaned). If at the end of each pay period, the participant’s earnings under the piece rate do not equal at least the amount the participant would have earned had the participant been paid the predominant local wage as provided in subparagraph (1), the participant’s pay must be supplemented at that time so that the participant’s earnings are at least as much as the required local wage as provided in subparagraph (1).
(3) Sponsors must ensure that appropriate assistance is provided to participants on an as-needed basis and that sponsors are available to participants (and host employers) to assist as facilitators, counselors, and information resources.
(j) Monitoring. Sponsors must:
(1) Maintain, at a minimum, monthly personal contacts with program participants. Such contact may be in-person, by telephone, or via exchanges of electronic mail (including a response from the participant) and must be properly documented. Sponsors must promptly and appropriately address issues affecting the participants’ health, safety, and welfare identified through such contacts; and
(2) Provide appropriate assistance to participants on an as-needed basis and be available to participants (and host employers) to assist as facilitators, counselors, and information resources.
(k) Internal controls. Sponsors must utilize organization-specific standard operating procedures for training and supervising all organization employees. In addition, sponsors must establish internal controls to ensure that employers and/or foreign entities comply with the terms of agreements with such third parties involved in the administration of the sponsors’ exchange visitor programs (i.e., affect the core programmatic functions).
(l) Sponsors’ use of third parties. (1) If sponsors utilize foreign third party entities to assist in fulfilling the core programmatic functions of screening and orientation that may be conducted outside the United States, they must first obtain written and executed agreements with such third parties. For the purpose of this section, U.S. entities operating outside the United States (or its possessions or territories) are considered foreign entities. At a minimum, these written agreements must:
(i) Outline the obligations and full relationship between the sponsors and such third parties on all matters involving the administration of the sponsors’ exchange visitor programs;
(ii) Delineate the parties’ respective responsibilities;
(iii) Include annually updated price lists for Summer Work Travel Programs marketed by the foreign entities including itemizations of all costs charged to participants;
(iv) Contain representations that such foreign entities will not engage in, permit the use of, or otherwise cooperate or contract with other third parties (including staffing or employment agencies or subcontractors) for the purpose of outsourcing any core programmatic functions of screening and orientation covered by the agreement; and
(v) Confirm that the foreign entities agree not to pay or provide incentives to employers in the United States to accept program participants for job placements.
(2) If sponsors utilize domestic third party entities to assist in fulfilling the core programmatic functions of orientation and promoting mutual understanding, they must first obtain written and executed agreements with such third parties. Domestic third parties engaged by sponsors may not engage or subcontract any other parties to assist in fulfilling these core programmatic functions. Only host employers may assist in providing orientation to program participants. At a minimum, these written agreements must:
(i) Outline the obligations and full relationship between the sponsors and such third parties on all matters involving the administration of the sponsors’ exchange visitor programs; and
(ii) Delineate the parties’ respective responsibilities.
(m) Vetting third party foreign entities. Sponsors must undertake appropriate due diligence in the review of potential overseas agents or partners (i.e., foreign entities) who assist in fulfilling the sponsors’ core programmatic functions that may be conducted outside the United States (i.e., screening and orientation) and must, at a minimum, annually review and maintain the following documentation for potential or existing foreign entities:
(1) Proof of business licensing and/or registration to enable them to conduct business in the venue(s) where they operate;
(2) Disclosure of any previous bankruptcy and of any pending legal actions or complaints against such an entity on file with local authorities;
(3) Written references from three current business associates or partner organizations;
(4) Summary of previous experience conducting J-1 Exchange Visitor Program activities;
(5) Criminal background check reports (including original and English translations) for all owners and officers of the organizations;
(6) A copy of the sponsor-approved advertising materials the foreign entities intend to use to market the sponsors’ programs (including original and English translations); and
(7) A copy of the foreign entity’s notarized recent financial statements.
(n) Vetting domestic third party entities. Annually, sponsors must undertake appropriate due diligence in the vetting of domestic third parties who assist in the promotion of mutual understanding and potential host employers.
(1) Sponsors must ensure that third parties assisting in promoting mutual understanding (i.e., providing opportunities for participants to engage in cultural activities) are reputable individuals or organizations that are qualified to perform the activities agreed to and that they have sufficient liability insurance, if appropriate. All third parties that are registered business entities must be vetted according to the host employer procedures set forth in paragraphs (n)(2)(i) through (iii) of this section.
(2) Sponsors must ensure that potential host employers are legitimate and reputable businesses by, at a minimum:
(i) Making direct contact in person or by telephone with potential employers to verify the business owners’ and/or managers’ names, telephone numbers, email addresses, street addresses, and professional activities;
(ii) Utilizing publicly available information, for example, but not limited to, state registries, advertisements, brochures, Web sites, and/or feedback from prior participants to confirm that all job offers have been made by viable business entities;
(iii) Obtaining potential host employers’ Employer Identification Numbers and copies of their current business licenses; and
(iv) Verifying the potential host employers’ Worker’s Compensation Insurance Policy or equivalent in each state where a participant will be placed or, if applicable, evidence of that state’s exemption from requirement of such coverage.
(3) At the beginning of each placement season, sponsors must confirm:
(i) The number of job placements available with host employers;
(ii) That host employers will not displace domestic U.S. workers at worksites where they will place program participants; and
(iii) That host employers have not experienced layoffs in the past 120 days and do not have workers on lockout or on strike.
(o) Host employer cooperation. Sponsors may place participants only with host employers that agree to:
(1) Make good faith efforts to provide participants the number of hours of paid employment per week as identified on their job offers and agreed to when the sponsors vetted the jobs;
(2) Pay eligible participants for overtime worked in accordance with applicable State or Federal law;
(3) Notify sponsors promptly when participants arrive at the work sites to begin their programs; when there are any changes or deviations in the job placements during the participants’ programs; when participants are not meeting the requirements of their job placements; or when participants leave their positions ahead of their planned departures;
(4) Contact sponsors immediately in the event of any emergency involving participants or any situations that impact their health, safety, or welfare; and
(5) In those instances when the employer provides housing or transportation, agree to provide suitable and acceptable accommodations and/or reliable, affordable, and convenient transportation.
(p) Reporting requirements. Sponsors must electronically comply with the following reporting requirements utilizing Department-provided templates:
(1) Submit placement reports on January 31 and July 31 of each year, identifying all Summer Work Travel Program participants who began exchange programs during the preceding six-month period. The reports must include the exchange visitors’ names, SEVIS Identification Numbers, countries of citizenship or legal permanent residence, names of host employers, and the length of time it took non-pre-placed participants to secure job placements. For participants who change jobs or have multiple jobs during their programs, the report must include all such placements;
(2) Maintain listings of all active foreign agents or partners on the Foreign Entity Report by promptly informing the Department of any additions, deletions, or changes to foreign entity information by submitting new versions of their reports that reflect all current information. Reports must include the names, addresses, and contact information, including physical and mailing addresses, telephone numbers, and email addresses of all foreign entities that assist the sponsors in fulfilling the provision of core programmatic services. Sponsors must utilize only vetted foreign entities identified in the Foreign Entity Report to assist in fulfilling the sponsors’ core programmatic functions outside the United States, and they must inform the Department promptly when and why they have cancelled contractual arrangements with foreign entities; and
(3) Submit annual participant price lists to the Department on January 31 of each year in a format approved by the Department to provide itemized breakdowns of the costs that exchange visitors must pay to both foreign agents and sponsors to participate in the Summer Work Travel Program on a country-specific (and, if appropriate, foreign agent-specific) basis.
Subpart C – Status of Exchange Visitors
§ 62.40 Termination of program participation.
(a) A sponsor shall terminate an exchange visitor’s participation in its program when the exchange visitor:
(1) Fails to pursue the activities for which he or she was admitted to the United States;
(2) Is unable to continue, unless otherwise exempted pursuant to these regulations;
(3) Violates the Exchange Visitor Program regulations and/or the sponsor’s rules governing the program, if, in the sponsor’s opinion, termination is warranted;
(4) Willfully fails to maintain the insurance coverage required under § 62.14 of these regulations; or
(b) An exchange visitor’s participation in the Exchange Visitor Program is subject to termination when he or she engages in unauthorized employment. Upon establishing such violation, the Department of State shall terminate the exchange visitor’s participation in the Exchange Visitor Program.
§ 62.41 Change of category.
(a) The Department of State may, in its discretion, permit an exchange visitor to change his or her category of exchange participation. Any change in category must be clearly consistent with and closely related to the participant’s original exchange objective and necessary due to unusual or exceptional circumstances.
(b) A request for change of category along with supporting justification must be submitted to the Department of State by the participant’s sponsor. Upon Department of State approval the sponsor shall issue to the exchange visitor a duly executed Form DS-2019 reflecting such change of category and provide a notification copy of such form to the Department of State.
(c) Requests for change of category from research scholar to student will be evaluated recognizing the fact that, in some cases, research skills can be substantially enhanced by doctoral study.
(d) An exchange visitor who applies for a change of category pursuant to these regulations is considered to be maintaining lawful status during the pendency of the application.
(e) An exchange visitor who applies for a change of category and who subsequently receives notice from the Department of State that the request has been denied is considered to be maintaining lawful status for an additional period of thirty days from the day of such notice, during which time the exchange visitor is expected to depart the country, or for a period of thirty days from expiration of the exchange visitors’ Form DS-2019, whichever is later.
§ 62.42 Transfer of program.
(a) Program sponsors may, pursuant to the provisions set forth in this section, permit an exchange visitor to transfer from one designated program to another designated program.
(b) The responsible officer of the program to which the exchange visitor is transferring:
(1) Shall verify the exchange visitor’s visa status and program eligibility;
(2) Execute the Form DS-2019; and
(3) Secure the written release of the current sponsor.
(c) Upon return of the completed Form DS-2019, the responsible officer of the program to which the exchange visitor has transferred shall provide:
(1) The exchange visitor his or her copy of the Form DS-2019; and
(2) A notification copy of such form to the Department of State.
§ 62.43 Extension of Program.
(a) Responsible officers may extend an exchange visitor’s participation in the Exchange Visitor Program up to the limit of the permissible period of participation authorized for his or her specific program category.
(b) A responsible officer extending the program of an exchange visitor shall issue to the exchange visitor a duly executed Form DS-2019 reflecting such extension and provide a notification copy of such form to the Department of State.
(c) The responsible officer seeking a program extension on behalf of an exchange visitor in excess of that authorized for his or her specific category of participation shall:
(1) Adequately document the reasons which justify such extension; and
(2) Secure the prior written approval of the Department of State for such extension.
(d) In addition to individual requests, the Department of State shall entertain requests for groups of similarly situated exchange visitors.
§ 62.45 Reinstatement to valid program status.
(a) Definitions. For purpose of this section –
You means the Responsible Officer or Alternate Responsible Officer;
Exchange visitor means the person who enters the United States on a J visa in order to participate in an exchange program designated by the Secretary of State of the Department of State.
Fails or failed maintain valid program status means the status of an exchange visitor who has completed, concluded, ceased, interrupted, graduated from, or otherwise terminated the exchange visitor’s participation in the exchange program, or who remains in the United States beyond the end date on the exchange visitor’s current Form DS-2019.
Unauthorized employment means any employment not properly authorized by you or by the Attorney General, i.e., the Immigration and Naturalization Service, prior to commencement of employment. Unauthorized employment does not include activities that are normally approvable, as described in paragraph (c)(3) of this section.
We, our, or us means the office of Exchange Visitor Program Services of the Department of State.
(b) Who is authorized to correct minor or technical infractions of the Exchange Visitor Program regulations? (1) If the exchange visitor committed a technical or minor infraction of the regulations, you are authorized to correct the exchange visitor’s records with respect to such technical or minor infractions of the regulations in this part. Your correction of such an infraction(s) returns the exchange visitor to the status quo ante, i.e., it is as if the infraction never occurred.
(2) You may only correct the exchange visitor’s record with respect to a technical or minor infraction of the regulations in this part if the exchange visitor is pursuing or intending to pursue the exchange visitor’s original program objective.
(3) You may not correct the exchange visitor’s records with respect to a technical or minor infraction of the regulations in this part if the exchange visitor has willfully failed to maintain insurance coverage during the period for which the record is being corrected; if the exchange visitor has engaged in unauthorized employment during that period, as defined in paragraph (a) of this section, of if the exchange visitor was involuntarily suspended or terminated from his or her program during the period.
(4) If the exchange visitor has failed to maintain valid program status because of a substantive violation of the regulations in this part, you must apply to us for reinstatement.
(c) What violations or infractions of the regulations in this part do we consider to be technical or minor ones, and how do you correct the record? We consider the following to be examples of technical or minor infractions which you are authorized to correct:
(1) Failure to extend the Form DS-2019 in a timely manner (i.e., prior to the end date on the current Form DS-2019) due to inadvertence or neglect on your part or on the part of the exchange visitor.
(2) Failure on the part of the exchange visitor to conclude a transfer of program prior to the end date on the current Form DS-2019 due to administrative delay or oversight, inadvertence or neglect on your part or on the part of the exchange visitor;
(3) Failure to receive your prior approval and/or an amended Form DS-2019 before accepting an honorarium or other type of payment for engaging in a normally approvable and appropriate activity. Example, a lecture, consultation, or other activity appropriate to the category which is provided by a professor, research scholar, short-term scholar or specialist without prior approval or an amended Form DS-2019 issued prior to the occurrence of the activity.
(4) You correct the record status quo ante by issuing a Form DS-2019 or by writing an authorization letter to reflect the continuity in the program or the permission to engage in the activity that a timely issued document would have reflected.
(i) Forms DS-2019 should be:
(A) Issued to show continued authorized stay without interruption;
(B) Marked in the “purpose” box with the appropriate purpose (i.e., extension, transfer, etc.) and with the additional notation of “correct the record” typed in;
(C) Dated as of the date the Form was actually executed; and,
(D) Submitted to the Department of State in the same way as any other notification.
(ii) Letters or other authorization documents should be:
(A) Issued according to the regulations in this part appropriate to the category and the activity;
(B) Marked or annotated to show “correct the record,”
(C) Dated as of the date the letter or document was actually executed; and,
(D) Attached to the exchange visitor’s Form DS-2019 and/or retained in the sponsor’s file as required by the regulations in this part for that particular type of letter or document.
(d) How do you determine if an infraction, other than those examples listed above is a technical or minor infraction? It is impossible to list every example of a technical or minor infraction. To guide you in making a determination, you are to examine the following criteria:
(1) Regardless of the reason, has the exchange visitor failed to maintain valid program status for more than 120 calendar days after the end date on the current Form DS-2019?
(2) Has the exchange visitor, by his or her actions, failed to maintain, at all relevant times, his or her original program objective?
(3) Has the exchange visitor willfully failed to comply with our insurance coverage requirements (§ 62.14)?
(4) Has the exchange visitor engaged in unauthorized employment, as that term is defined in paragraph (a) of this section?
(5) Has the exchange visitor category been involuntarily suspended or terminated from his or her program?
(6) Has an exchange visitor in the student category failed to maintain a full course of study (as defined in § 62.2) without prior consultation with you and the exchange visitor’s academic advisor?
(7) Has the exchange visitor failed to pay the fee mandated by Public Law 104-208 (the “CIPRIS” fee)?
(8) If the answer to any of the above questions is “yes,” then the infraction is not a technical or minor one and you are not authorized to reinstate the exchange visitor to valid program status.
(e) Which violations or infractions do we consider to be substantive ones requiring you to apply to us for reinstatement? The following are substantive violations or infractions of the regulations in this part by the exchange visitor which require you to apply to us for reinstatement to valid program status:
(1) Failure to maintain valid program status for more than 120 days after the end date on the current Form DS-2019;
(2) If a student, failure to maintain a full course of study (as defined in § 62.2) without prior consultation with you and the exchange visitor’s academic advisor.
(f) Which, if any, violations of the regulations in this part or other conditions preclude reinstatement and will result in a denial if application is made? We will not consider requests for reinstatement (nor should you) when an exchange visitor has:
(1) Knowingly or willfully failed to obtain or maintain the required health insurance (§ 62.14) at all times while in the United States;
(2) Engaged in unauthorized employment, as that term is defined in paragraph (a) of this section;
(3) Been suspended or terminated from the most recent exchange visitor program;
(4) Failed to maintain valid program status for more than 270 calendar days;
(5) Received a favorable recommendation from the Department of State on an application for waiver of section 212(e) of the Immigration and Nationality Act [8 U.S.C. 1182(e)]; or,
(6) Failed to pay the fee mandated by Public Law 104-208 (the “CIPRIS” fee.)
(g) What if you cannot determine which category (technical, substantive, or non-reinstatable) the violation or infraction falls within? If you cannot determine which category the violation or condition falls within, then you must, on behalf of the exchange visitor, apply to us for reinstatement.
(h) If you determine that the exchange visitor’s violation of the regulations in this part is a substantive one, how do you apply for a reinstatement to valid program status? (1) If you determine that the violation of the regulations in this part is a substantive one, and that the exchange visitor has failed to maintain valid program status for 120 days or less, you must apply to us for reinstatement of the exchange visitor to valid program status. Your application must include:
(i) All copies of the exchange visitor’s Forms DS-2019 issued to date;
(ii) A new, completed Form DS-2019, showing in Block 3 the date of the period for which reinstatement is sought, i.e., the new program end date;
(iii) A copy of the receipt showing that the Public Law 104-208 fee has been paid; and,
(iv) A written statement (and documentary information supporting such statement):
(A) Declaring that the exchange visitor is pursuing or was at all times intending to pursue the original exchange visitor program activity for which the exchange visitor was admitted to the United States; and,
(B) Showing that the exchange visitor failed to maintain valid program status due to circumstances beyond the control of the exchange visitor, or from administrative delay or oversight, inadvertence, or excusable neglect on your part or the exchange visitor’s part; or,
(C) Showing that it would be an unusual hardship to the exchange visitor if we do not grant the reinstatement to valid program status.
(2) If you determine that the violation of the regulations is a substantive one, and that the exchange visitor has failed to maintain valid program status for more than 120 days, then you must apply to us for reinstatement of the exchange visitor to valid program status. Your application must include:
(i) Copies of all the exchange visitor’s Forms DS-2019 issued to date;
(ii) A new, completed Form DS-2019, showing in Block 3 the date for which reinstatement is sought, i.e., the new program end date;
(iii) A copy of the receipt showing that the Pub. L. 104-208 fee has been paid; and,
(iv) A written statement (together with documentary evidence supporting such statement):
(A) Declaring that the exchange visitor is pursuing or was at all times intending to pursue the exchange visitor program activity for which the exchange visitor was admitted to the United States; and,
(B) Showing that the exchange visitor failed to maintain valid program status due to circumstances beyond the control of the exchange visitor, or from administrative delay or oversight, inadvertence, or excusable neglect on your part or the exchange visitor’s part; and,
(C) Showing that it would be an unusual hardship to the exchange visitor if we do not grant the reinstatement to valid program status.
(i) How will we notify you of our decision on your request for reinstatement? (1) If we deny your request for reinstatement, we will notify you by letter.
(2) If we approve your request for reinstatement, we will notify you:
(i) By stamping Box 6 on the new Form DS-2019 to show that reinstatement was granted, effective as of the date on which the application for reinstatement was received by the Exchange Visitor Program Services office; and
(ii) By returning the new Form DS-2019 for the exchange visitor.
(j) How long will it take us to act on your request for reinstatement? We will act on your request for reinstatement within forty-five days from the date on which we receive the request and supporting documentation.
(k) Are you required to notify us each time that you correct a record? No special notification is necessary. Submission of the notification copy of Form DS-2019 to the Department of State serves as notice that a record has been corrected. Following the regulations in this part in issuing a letter or document serves as correction in the sponsor’s file for those items not normally sent to the Department of State under existing notification procedures.
Subpart D – Sanctions
§ 62.50 Sanctions.
(a) Reasons for sanctions. The Department of State (Department) may impose sanctions against a sponsor upon a finding by its Office of Exchange Coordination and Designation (Office) that the sponsor has:
(1) Violated one or more provisions of this Part;
(2) Evidenced a pattern of failure to comply with one or more provisions of this Part;
(3) Committed an act of omission or commission, which has or could have the effect of endangering the health, safety, or welfare of an exchange visitor; or
(4) Otherwise conducted its program in such a way as to undermine the foreign policy objectives of the United States, compromise the national security interests of the United States, or bring the Department or the Exchange Visitor Program into notoriety or disrepute.
(b) Lesser sanctions. (1) In order to ensure full compliance with the regulations in this Part, the Department, in its discretion and depending on the nature and seriousness of the violation, may impose any or all of the following sanctions (“lesser sanctions”) on a sponsor upon a finding that the sponsor engaged in any of the acts or omissions set forth in paragraph (a) of this section:
(i) A written reprimand to the sponsor, with a warning that repeated or persistent violations of the regulations in this part may result in suspension or revocation of the sponsor’s Exchange Visitor Program designation, or other sanctions as set forth herein;
(ii) A declaration placing the exchange visitor sponsor’s program on probation, for a period of time determined by the Department in its discretion, signifying a pattern of violation of regulations such that further violations could lead to suspension or revocation of the sponsor’s Exchange Visitor Program designation, or other sanctions as set forth herein;
(iii) A corrective action plan designed to cure the sponsor’s violations; or
(iv) Up to a 15 percent (15%) reduction in the authorized number of exchange visitors in the sponsor’s program or in the geographic area of its recruitment or activity. If the sponsor continues to violate the regulations in this Part, the Department may impose subsequent additional reductions, in ten-percent (10%) increments, in the authorized number of exchange visitors in the sponsor’s program or in the geographic area of its recruitment or activity.
(2) Within ten (10) days after service of the written notice to the sponsor imposing any of the sanctions set forth in paragraph (b)(1) of this section, the sponsor may submit to the Office a statement in opposition to or mitigation of the sanction. Such statement may not exceed 20 pages in length, double-spaced and, if appropriate, may include additional documentary material. Sponsors shall include with all documentary material an index of the documents and a summary of the relevance of each document presented. Upon review and consideration of such submission, the Office may, in its discretion, modify, withdraw, or confirm such sanction. All materials the sponsor submits will become a part of the sponsor’s file with the Office.
(3) The decision of the Office is the final Department decision with regard to lesser sanctions in paragraphs (b)(1)(i) through (iv) of this section.
(c) Suspension. (1) Upon a finding that a sponsor has committed a serious act of omission or commission which has or could have the effect of endangering the health, safety, or welfare of an exchange visitor, or of damaging the national security interests of the United States, the Office may serve the sponsor with written notice of its decision to suspend the designation of the sponsor’s program for a period not to exceed one hundred twenty (120) days. Such notice must specify the grounds for the sanction and the effective date thereof, advise the sponsor of its right to oppose the suspension, and identify the procedures for submitting a statement of opposition thereto. Suspension under this paragraph need not be preceded by the imposition of any other sanction or notice.
(2)(i) Within five (5) days after service of such notice, the sponsor may submit to the Principal Deputy Assistant Secretary for Educational and Cultural Affairs (Principal Deputy Assistant Secretary, or PDAS) a statement in opposition to the Office’s decision. Such statement may not exceed 20 pages in length, double-spaced and, if appropriate, may include additional documentary material. A sponsor shall include with all documentary material an index of the documents and a summary of the relevance of each document presented. The submission of a statement in opposition to the Office’s decision will not serve to stay the effective date of the suspension.
(ii) Within five (5) days after receipt of, and upon consideration of, such opposition, the Principal Deputy Assistant Secretary shall confirm, modify, or withdraw the suspension by serving the sponsor with a written decision. Such decision must specify the grounds therefore, and advise the sponsor of the procedures for requesting review of the decision.
(iii) All materials the sponsor submits will become a part of the sponsor’s file with the Office.
(3) The procedures for review of the decision of the Principal Deputy Assistant Secretary are set forth in paragraphs (d)(3) and (4), (g), and (h) of this section, except that the submission of a request for review will not serve to stay the suspension.
(d) Revocation of designation. (1) Upon a finding of any act or omission set forth at paragraph (a) of this section, the Office may serve a sponsor with not less than thirty (30) days’ written notice of its intent to revoke the sponsor’s Exchange Visitor Program designation. Such notice must specify the grounds for the proposed sanction and its effective date, advise the sponsor of its right to oppose the proposed sanction, and identify the procedures for submitting a statement of opposition thereto. Revocation of designation under this paragraph need not be preceded by the imposition of any other sanction or notice.
(2)(i) Within ten (10) days after service of such written notice of intent to revoke designation, the sponsor may submit to the Principal Deputy Assistant Secretary a statement in opposition to or mitigation of the proposed sanction, which may include a request for a meeting.
(ii) The submission of such statement will serve to stay the effective date of the proposed sanction pending the decision of the Principal Deputy Assistant Secretary.
(iii) The Principal Deputy Assistant Secretary shall provide a copy of the statement in opposition to or mitigation of the proposed sanction to the Office. The Office shall submit a statement in response, and shall provide the sponsor with a copy thereof.
(iv) A statement in opposition to or mitigation of the proposed sanction, or statement in response thereto, may not exceed 25 pages in length, double-spaced and, if appropriate, may include additional documentary material. Any additional documentary material may include an index of the documents and a summary of the relevance of each document presented.
(v) Upon consideration of such statements, the Principal Deputy Assistant Secretary shall modify, withdraw, or confirm the proposed sanction by serving the sponsor with a written decision. Such decision shall specify the grounds therefor, identify its effective date, advise the sponsor of its right to request a review, and identify the procedures for requesting such review.
(vi) All materials the sponsor submits will become a part of the sponsor’s file with the Office.
(3) Within ten (10) days after service of such written notice of the decision of the Principal Deputy Assistant Secretary, the sponsor may submit a request for review with the Principal Deputy Assistant Secretary. The submission of such request for review will serve to stay the effective date of the decision pending the outcome of the review.
(4) Within ten (10) days after receipt of such request for review, the Department shall designate a panel of three Review Officers pursuant to paragraph (g) of this section, and the Principal Deputy Assistant Secretary shall forward to each panel member all notices, statements, and decisions submitted or provided pursuant to the preceding paragraphs of paragraph (d) of this section. Thereafter, the review will be conducted pursuant to paragraphs (g) and (h) of this section.
(e) Denial of application for redesignation. Upon a finding of any act or omission set forth at paragraph (a) of this section, the Office may serve a sponsor with not less than thirty (30) days’ written notice of its intent to deny the sponsor’s application for redesignation. Such notice must specify the grounds for the proposed sanction and its effective date, advise the sponsor of its right to oppose the proposed sanction, and identify the procedures for submitting a statement of opposition thereto. Denial of redesignation under this section need not be preceded by the imposition of any other sanction or notice. The procedures for opposing a proposed denial of redesignation are set forth in paragraphs (d)(2), (d)(3), (d)(4), (g), and (h) of this section.
(f) Responsible officers. The Office may direct a sponsor to suspend or revoke the appointment of a responsible officer or alternate responsible officer for any of the reasons set forth in paragraph (a) of this section. The procedures for suspending or revoking a responsible officer or alternate responsible officer are set forth at paragraphs (d), (g), and (h) of this section.
(g) Review officers. A panel of three Review Officers shall hear a sponsor’s request for review pursuant to paragraphs (c), (d), (e), and (f) of this section. The Under Secretary of State for Public Diplomacy and Public Affairs shall designate one senior official from an office reporting to him/her, other than from the Bureau of Educational and Cultural Affairs, as a member of the Panel. The Assistant Secretary of State for Consular Affairs and the Legal Adviser shall each designate one senior official from their bureaus as members of the Panel.
(h) Review. The Review Officers may affirm, modify, or reverse the sanction imposed by the Principal Deputy Assistant Secretary. The following procedures shall apply to the review:
(1) Upon its designation, the panel of Review Officers shall promptly notify the Principal Deputy Assistant Secretary and the sponsor in writing of the identity of the Review Officers and the address to which all communications with the Review Officers shall be directed.
(2) Within fifteen (15) days after service of such notice, the sponsor may submit to the Review Officers four (4) copies of a statement identifying the grounds on which the sponsor asserts that the decision of the Principal Deputy Assistant Secretary should be reversed or modified. Any such statement may not exceed 25 pages in length, double-spaced; and any attachments thereto shall not exceed 50 pages. A sponsor shall include with all attachments an index of the documents and a summary of the relevance of each document presented. The Review Officers shall transmit one (1) copy of any such statement to the Principal Deputy Assistant Secretary, who shall, within fifteen (15) days after receipt of such statement, submit four (4) copies of a statement in response. Any such statement may not exceed 25 pages in length, double-spaced; and any attachments thereto shall not exceed 50 pages. The Principal Deputy Assistant Secretary shall include with all attachments an index of the documents and a summary of the relevance of each document presented. The Review Officers shall transmit one (1) copy of any such statement to the sponsor. No other submissions may be made unless specifically authorized by the Review Officers.
(3) If the Review Officers determine, in their sole discretion, that a meeting for the purpose of clarification of the written submissions should be held, they shall schedule a meeting to be held within twenty (20) days after the receipt of the last written submission. The meeting will be limited to no more than two (2) hours. The purpose of the meeting will be limited to the clarification of the written submissions. No transcript may be taken and no evidence, either through documents or by witnesses, will be received. The sponsor and the representative of the Principal Deputy Assistant Secretary may attend the meeting on their own behalf and may be accompanied by counsel.
(4) Following the conclusion of the meeting, or the submission of the last written submission if no meeting is held, the Review Officers shall promptly review the submissions of the sponsor and the Principal Deputy Assistant Secretary, and shall issue a signed written decision within thirty (30) days, stating the basis for their decision. A copy of the decision will be delivered to the Principal Deputy Assistant Secretary and the sponsor.
(5) If the Review Officers decide to affirm or modify the sanction, a copy of their decision shall also be delivered to the Department of Homeland Security and to the Bureau of Consular Affairs of the Department of State. The Office, at its discretion, may further distribute the decision.
(6) Unless otherwise indicated, the sanction, if affirmed or modified, is effective as of the date of the Review Officers’ written decision, except in the case of suspension of program designation, which is effective as of the date specified pursuant to paragraph (c) of this section.
(i) Effect of suspension, revocation, or denial of redesignation. A sponsor against which an order of suspension, revocation, or denial of redesignation has become effective may not thereafter issue any Certificate of Eligibility for Exchange Visitor (J-1) Status (Form DS-2019) or advertise, recruit for, or otherwise promote its program. Under no circumstances shall the sponsor facilitate the entry of an exchange visitor into the United States. An order of suspension, revocation, or denial of redesignation will not in any way diminish or restrict the sponsor’s legal or financial responsibilities to existing program applicants or participants.
(j) Miscellaneous – (1) Computation of time. In computing any period of time prescribed or allowed by these regulations, the day of the act or event from which the designated period of time begins to run is not included. The last day of the period so computed is included unless it is a Saturday, a Sunday, or a Federal legal holiday, in which event the period runs until the end of the next day which is not one of the aforementioned days. When the period of time prescribed or allowed is fewer than eleven (11) days, intermediate Saturdays, Sundays, or Federal legal holidays are excluded in the computation.
(2) Service of notice to sponsor. Service of notice to a sponsor pursuant to this section may be accomplished through written notice by mail, delivery, electronic mail, or facsimile, upon the president, chief executive officer, managing director, General Counsel, Responsible Officer, or Alternate Responsible Officer of the sponsor.
Subpart E – Termination and Revocation of Programs
§ 62.60 Termination of designation
Designation will be terminated upon the occurrence of any of the circumstances set forth in this section.
(a) Voluntary termination. A sponsor notifies the Department of its intent to terminate its designation voluntarily and withdraws its program in SEVIS via submission of a “cancel program” request. The sponsor’s designation shall terminate upon submission of such notification. Such sponsor may apply for a new program designation.
(b) Inactivity. A sponsor fails to comply with the minimum program size or duration requirements, as specified in § 62.8 (a) and (b), in any 12-month period. Such sponsor may apply for a new program designation.
(c) Failure to file annual reports. A sponsor fails to file annual reports for two (2) consecutive years. Such sponsor is eligible to apply for a new program designation.
(d) Failure to file an annual management audit. A sponsor fails to file an annual management audit, if such audits are required in the relevant program category. Such sponsor is eligible to apply for a new program designation upon the filing of the past due management audit.
(e) Change in ownership or control. An exchange visitor program designation is not assignable or transferable. A major change in ownership or control automatically terminates the designation. However, the successor sponsor may apply for designation of the new entity, and it may continue to administer the exchange visitor activities of the previously-designated program while the application for designation is pending before the Department of State:
(1) With respect to a for-profit corporation, a major change in ownership or control is deemed to have occurred when one third (33.33%) or more of its stock is sold or otherwise transferred within a 12-month period;
(2) With respect to a not-for-profit corporation, a major change of control is deemed to have occurred when 51 percent (51%) or more of the board of trustees or other like body, vested with its management, is replaced within a 12-month period.
(f) Non-compliance with other requirements. A sponsor fails to remain in compliance with Federal, State, local, or professional requirements necessary to carry out the activity for which it is designated, including loss of accreditation, or licensure.
(g) Failure to apply for redesignation. A sponsor fails to apply for redesignation, pursuant to the terms and conditions of § 62.7, prior to the conclusion of its current designation period. If so terminated, the former sponsor may apply for a new program designation, but the program activity will be suspended during the pendency of the application.
§ 62.61 Revocation.
The Department may terminate a sponsor’s program designation by revocation for cause as specified in § 62.50. Such sponsor may not apply for a new designation for five (5) years following the effective date of the revocation.
§ 62.62 Termination of, or denial of redesignation for, a class of designated programs.
The Department may, in its sole discretion, determine that a class of designated programs compromises the national security of the United States or no longer furthers the public diplomacy mission of the Department of State. Upon such a determination, the Office shall:
(a) Give all sponsors of such class of designated programs not less than thirty (30) days’ written notice of the revocation of Exchange Visitor Program designations for such programs, specifying therein the grounds and effective date for such revocations; or
(b) Give any sponsor of such class of designated programs not less than thirty (30) days’ written notice of its denial of the sponsor’s application for redesignation, specifying therein the grounds for such denial and effective date of such denial. Revocation of designation or denial of redesignation on the above-specified grounds for a class of designated programs is the final decision of the Department.
§ 62.63 Responsibilities of the sponsor upon termination or revocation.
Upon termination or revocation of its program designation, a sponsor must:
(a) Fulfill its responsibilities to all exchange visitors who are in the United States at the time of the termination or revocation; and
(b) Notify exchange visitors who have not entered the United States that the program has been terminated or revoked, unless a transfer to another designated program can be obtained.
Subparts F-G [Reserved]
Appendixes A-D to Part 62 [Reserved]
Appendix E to Part 62 – Unskilled Occupations
For purposes of 22 CFR 514.22(c)(1), the following are considered to be “unskilled occupations”:
Appendix F to Part 62 – Information To Be Collected on Secondary School Student Host Family Applications
Basic Family Information:
a. Host Family Member – Full name and relationship (children and adults) either living full-time or part-time in the home or who frequently stay at the home)
b. Date of Birth (DOB) of all family members
c. Street Address
d. Contact information (telephone; e-mail address) of host parents
e. Employment – employer name, job title, and point of contact for each working resident of the home
f. Is the residence the site of a functioning business? (e.g., daycare, farm)
g. Description of each household member (e.g., level of education, profession, interests, community involvement, and relevant behavioral or other characteristics of such household members that could affect the successful integration of the exchange visitor into the household)
h. Has any member of your household ever been charged with any crime?
Household Pets:
a. Number of Pets
b. Type of Pets
Financial Resources:
a. Average Annual Income Range: Less than $25,000; $25,000-$35,000; $35,000-$45,000; $45,000-$55,000; $55,000-$65,000; $65,000-$75,000; and $75,000 and above. Note: The form must include a statement stating that: “The income data collected will be used solely for the purposes of ensuring that the basic needs of the exchange students can be met, including three quality meals and transportation to and from school activities”
b. Describe if anyone residing in the home receives any kind of public assistance (financial needs-based government subsidies for food or housing)
c. Identify those personal expenses expected to be covered by the student
Diet:
a. Does anyone in the family follow any dietary restrictions? (Y/N)
If yes, describe:
b. Do you expect the student to follow any dietary restrictions? (Y/N)
If yes, describe:
c. Would you feel comfortable hosting a student who follows a particular dietary restriction (ex. Vegetarian, Vegan, etc.)? (Y/N)
d. Would the family provide three (3) square meals daily?
High School Information:
a. Name and address of school (private or public school)
b. Name, address, e-mail and telephone number of school official
c. Approximate size of the school student body
d. Approximate distance between the school and your home
e. Approximate start date of the school year
f. How will the exchange student get to the school (e.g. bus, carpool, walk)?
g. Would the family provide special transportation for extracurricular activities after school or in the evenings, if required?
h. Which, if any, of your family’s children, presently attend the school in which the exchange visitor is enrolled?
If applicable list sports/clubs/activities, if any, your child(ren) participate(s) in at the school
i. Does any member of your household work for the high school in a coaching/teaching/or administrative capacity?
j. Has any member of your household had contact with a coach regarding the hosting of an exchange student with particular athletic ability?
If yes, please describe the contact and sport.
Community Information:
a. In what type of community do you live (e.g.: Urban, Suburban, Rural, Farm)
b. Population of community
c. Nearest Major City (Distance and population)
d. Nearest Airport (Distance)
e. City or town website
f. Briefly describe your neighborhood and community
g. What points of interest are near your area (parks, museums, historical sites)?
h. Areas in or near neighborhood to be avoided?
Home Description:
a. Describe your type of home (e.g., single family home, condominium, duplex, apartment, mobile home) and include photographs of the host family home’s exterior and grounds, kitchen, student’s bedroom, student’s bathroom, and family and living areas.
b. Describe Primary Rooms and Bedrooms
c. Number of Bathrooms
d. Will the exchange student share a bedroom? (Y/N)
If yes, with which household resident?
e. Describe the student’s bedroom
f. Describe amenities to which the student has access
g. Utilities
Family Activities:
a. Language spoken in home
b. Please describe activities and/or sports each family member participates in: (e.g., camping, hiking, dance, crafts, debate, drama, art, music, reading, soccer, baseball, horseback riding)
c. Describe your expectations regarding the responsibilities and behavior of the student while in your home (e.g., homework, household chores, curfew (school night and weekend), access to refrigerator and food, drinking of alcoholic beverages, driving, smoking, computer/Internet/E-Mail)
Would you be willing voluntarily to inform the exchange visitor in advance of any religious affiliations of household members? (Y/N)
Would any member of the household have difficulty hosting a student whose religious beliefs were different from their own? (Y/N) Note: A host family may want the exchange visitor to attend one or more religious services or programs with the family. The exchange visitor cannot be required to do so, but may decide to experience this facet of U.S. culture at his or her discretion.
How did you learn about being a host family?
References:
PART 63 – PAYMENTS TO AND ON BEHALF OF PARTICIPANTS IN THE INTERNATIONAL EDUCATIONAL AND CULTURAL EXCHANGE PROGRAM
§ 63.1 Definitions.
For the purpose of this part the following terms shall have the meaning here given:
(a) International educational and cultural exchange program of the Department of State. A program to promote mutual understanding between the people of the United States and those of other countries and to strengthen cooperative international relations in connection with which payments are made direct by the Department of State, as well as similar programs carried out by other Government departments and agencies and by private organizations with funds appropriated or allocated to the Department of State when the regulations in this part apply under the provisions of § 515.2 (a) and (b).
(b) Program and Agency. For convenience, the international educational and cultural exchange program of the Department of State will hereinafter be referred to as the “program,” and the Department of State will hereinafter be referred to as the “Agency.”
(c) Participant. Any person taking part in the program for purposes listed in § 515.3 through § 515.8 including both citizens of the United States and citizens and nationals of the other countries with which the program is conducted.
(d) Transportation. All necessary travel on railways, airplanes, steamships, buses, streetcars, taxicabs, and other usual means of conveyance.
(e) Excess baggage. Baggage in excess of the weight or size carried free by public carriers on first class service.
(f) Per diem allowance. Per diem in lieu of subsistence includes all charges for meals and lodging; fees and tips; telegrams and telephone calls reserving hotel accommodations; laundry, cleaning and pressing of clothing; transportation between places of lodging or business and places where meals are taken.
§ 63.2 Applicability of this part under special circumstances.
(a) Funds administered by another department or agency. The regulations in this part shall apply to payments made to or on behalf of participants from funds appropriated or allocated to the Agency and transferred by the Agency to some other department, agency or independent establishment of the Government unless the terms of the transfer provide that such regulations shall not apply in whole or in part or with such modification as may be prescribed in each case to meet the exigencies of the particular situation.
(b) Funds administered by private organizations. The regulations in this part shall apply to payments made to or on behalf of participants from funds appropriated or allocated to the Agency and administered by an institution, facility, or organization in accordance with the terms or a contract or grant made by the Agency with or to such private organizations, unless the terms of such contract or grant provide that the regulations in this part are not to be considered applicable or that they are to be applied with such modifications as may be prescribed in each case to meet the exigencies of the particular situation.
(c) Appropriations or allocations. The regulations in this part shall apply to payments made by the Agency with respect to appropriations or allocations which are or may hereafter be made available to the Agency for the program so far as the regulations in this part are not inconsistent therewith.
§ 63.3 Grants to foreign participants to observe, consult, demonstrate special skills, or engage in specialized programs.
A citizen or national of a foreign country who has been awarded a grant to observe, consult with colleagues, demonstrate special skills, or engage in specialized programs, may be entitled to any or all of the following benefits when authorized by the Agency.
(a) Transportation. Accommodations, as authorized, on steamship, airplane, railway, or other means of conveyance. For travel in a privately owned vehicle, reimbursement will be in accordance with the provisions of the Federal Travel Regulations.
(b) Excess baggage. Excess baggage as deemed necessary by the Agency.
(c) Per diem allowance. Per diem allowances in lieu of subsistence expenses while participating in the program in the United States, its territories or possessions and while traveling within or between the United States, its territories or possessions shall be established by the Secretary of State from time to time, within limitations prescribed by law. The participant shall be considered as remaining in a travel status during the entire period covered by his or her grant unless otherwise designated.
(d) Allowance. A special allowance in lieu of per diem while traveling to and from the United States may be established by the Secretary of State, within limitations prescribed by law.
(e) Tuition and related expenses. Tuition and related expenses in connection with attendance at seminars and workshops, professional meetings, or other events in keeping with the purpose of the grant.
(f) Books and educational materials allowance. A reasonable allowance for books and educational materials.
(g) Advance of funds. Advance of funds including per diem.
§ 63.4 Grants to foreign participants to lecture, teach, and engage in research.
A citizen or national of a foreign country who has been awarded a grant to lecture, teach, and engage in research may be entitled to any or all of the following benefits when authorized by the Agency:
(a) Transportation. Accommodations, as authorized on steamship, airplane, railway, or other means of conveyance. For travel in a privately owned vehicle, reimbursement will be in accordance with the provisions of the Federal Travel Regulations.
(b) Excess baggage. Excess baggage as deemed necessary by the Agency.
(c) Per diem allowance. Per diem allowance in lieu of subsistence expenses while participating in the program in the United States, its territories or possessions and while traveling within or between the United States, its territories or possessions shall be established by the Secretary of State from time to time, within limitations prescribed by law.
(d) Allowance. A special allowance in lieu of per diem while traveling to and from the United States may be established by the Secretary of State, within limitations prescribed by law.
(e) Tuition and related expenses. Tuition and related expenses in connection with attendance at educational institutions, seminars and workshops, professional meetings or other events in keeping with the purpose of the grant.
(f) Books and educational materials allowance. A reasonable allowance for books and educational materials.
(g) Advance of funds. Advance of funds including per diem.
§ 63.5 Grants to foreign participants to study.
A citizen or national of a foreign country who has been awarded a grant to study may be entitled to any or all of the following benefits when authorized by the Agency:
(a) Transportation. Accommodations, as authorized, on steamship, airplane, railway, or other means of conveyance. For travel in a privately owned vehicle, reimbursement will be accordance with the provisions of the Federal Travel Regulations.
(b) Excess baggage. Excess baggage as deemed necessary by the Agency.
(c) Per diem allowance. Per diem allowance in lieu of subsistence expenses while traveling (1) from point of entry in the United States, its territories or possessions to orientation centers and while in attendance at such centers for purposes of orientation, not to exceed 30 days, (2) to educational institutions of affiliation, and (3) to point of departure and while participating in authorized field trips or conferences, shall be established by the Secretary of State from time to time, within limitations prescribed by law.
(d) Allowances. (1) A maintenance allowance while present and in attendance at an educational institution, facility or organization, and
(2) A travel allowance in lieu of per diem while traveling to and from the United States may be established by the Secretary of State, within limitations prescribed by law.
(e) Tuition. Tuition and related fees for approved courses of study.
(f) Books and educational materials allowance. A reasonable allowance for books and educational materials.
(g) Tutoring assistance. Special tutoring assistance in connection with approved courses of study.
(h) Advance of funds. Advance of funds including per diem.
§ 63.6 Assignment of United States Government employees to consult, lecture, teach, engage in research, or demonstrate special skills.
An employee of the United States Government who has been assigned for service abroad to consult, lecture, teach, engage in research, or demonstrate special skills, may be entitled to any or all of the following benefits when authorized by the Agency.
(a) Transportation. Transportation and miscellaneous expenses in the United States and abroad, including baggage charges, and per diem in lieu of subsistence at the maximum rates allowable while in a travel status in accordance with the provisions of the Federal Travel Regulations. The participant shall be considered as remaining in a travel status during the entire period covered by his or her assignment unless otherwise designated.
(b) Advance of funds. Advances of per diem as provided by law.
(c) Compensation. Compensation in accordance with Civil Service rules; or in accordance with the grade in which the position occupied may be administratively classified; or Foreign Service Act, as amended.
(d) Allowances for cost of living and living quarters. Allowances for living quarters, heat, fuel, light, and to compensate for the increased cost of living in accordance with the Federal Travel Regulations (Government Civilians, Foreign Areas), when not in a travel status as provided in paragraph (a) of this section.
(e) Books and educational materials allowance. A reasonable allowance for books and educational materials. Such books and materials, unless otherwise specified, shall be selected by the employee and purchased and shipped by the Agency or its agent. At the conclusion of the assignment, the books and educational materials shall be transferred to and become the property of an appropriate local institution or be otherwise disposed of as directed by the Agency.
(f) Families and effects. Cost of transportation of immediate family and household goods and effects when going to and returning from posts of assignment in foreign countries in accordance with the provisions of the Foreign Service Regulations of the United States of America.
§ 63.7 Grants to United States participants to consult, lecture, teach, engage in research, demonstrate special skills, or engage in specialized programs.
A citizen or resident of the United States who has been awarded a grant to consult, lecture, teach, engage in research, demonstrate special skills, or engage in specialized programs may be entitled to any or all of the following benefits when authorized by the Agency.
(a) Transportation. Transportation in the United States and abroad, including baggage charges.
(b) Subsistence and miscellaneous travel expenses. Per diem, in lieu of subsistence while in a travel status, at the maximum rates allowable in accordance with the provisions of the Federal Travel Regulations, unless otherwise specified, and miscellaneous travel expenses, in the United States and abroad. Alternatively, a travel allowance may be authorized to cover subsistence and miscellaneous travel expenses. The participant shall be considered as remaining in a travel status during the entire period covered by his or her grant unless otherwise designated.
(c) Orientation and debriefing within the United States. For the purpose of orientation and debriefing within the United States, compensation, travel, and per diem at the maximum rates allowable in accordance with the provisions of the Federal Travel Regulations, unless otherwise specified. Alternatively, a travel allowance may be authorized to cover subsistence and miscellaneous travel expenses.
(d) Advance of funds. Advance of funds, including allowance for books and educational materials and per diem, or alternatively, the allowance to cover subsistence and miscellaneous travel expenses.
(e) Compensation. Compensation at a rate to be specified in each grant.
(f) Allowances. Appropriate allowance as determined by the Agency.
(g) Books and educational materials allowance. Where appropriate, an allowance for books and educational materials. Such books and materials, unless otherwise specified, shall be selected by the grantee and purchased and shipped either by the grantee, or the Agency or its agent. At the conclusion of the grant, the books and materials shall be transferred to and become the property of an appropriate local institution or be otherwise disposed of as directed by the Agency.
§ 63.8 Grants to United States participants to study.
A citizen of the United States who has been awarded a grant to study may be entitled to any or all of the following benefits when authorized by the Agency.
(a) Transportation. Transportation and miscellaneous expenses in the United States and abroad, including baggage charges, and per diem in lieu of subsistence while in a travel status. Per diem at the maximum rates allowable in accordance with the provisions of the Federal Travel Regulations, unless otherwise specified. Travel status shall terminate upon arrival at the place of study designated in the grant and shall recommence upon departure from the place to return home.
(b) Orientation and debriefing within the United States. For the purpose of orientation and debriefing within the United States travel and per diem at the maximum rates allowable in accordance with the provisions of the Federal Travel Regulations, unless othewise specified.
(c) Advance of funds. Advance of funds including per diem.
(d) Maintenance allowance. A maintenance allowance at a rate to be specified in each grant.
(e) Tuition. Tuition and related fees for approved courses of study.
(f) Books and educational materials allowance. A reasonable allowance for books and educational materials.
(g) Tutoring assistance. Special tutoring assistance in connection with approved courses of study.
§ 63.9 General provisions.
The following provisions shall apply to the foregoing regulations:
(a) Health and accident insurance. Payment for the costs of health and accident insurance for United States and foreign participants while such participants are enroute or absent from their homes for purposes of participation in the program when authorized by the Agency.
(b) Transportation of remains. Payments for the actual expenses of preparing and transporting to their former homes the remains of persons not United States Government employees, who may die away from their homes while participating in the program are authorized.
(c) Maxima not controlling. Payments and allowances may be made at the rate or in the amount provided in the regulations in this part unless an individual grant or travel order specifies that less than the maximum will be allowed under any part of the regulation in this part. In such case, the grant or travel order will control.
(d) Individual authorization. Where the regulations in this part provide for compensation, allowance, or other payment, no payment shall be made therefor unless a definite amount or basis of payment is authorized in the individual case, or is approved as provided in paragraph (f) of this section.
(e) Computation of per diem and allowance. In computing per diem and allowance payable while on a duty assignment, except for travel performed under the Federal Travel Regulations, fractional days shall be counted as full days, the status at the end of the calendar day determining the status for the entire day.
(f) Subsequent approval. Whenever without prior authority expense has been incurred by a participant, or an individual has commenced his or her participation in the program as contemplated by the regulations in this part, the voucher for payments in connection therewith may be approved by an official designated for this purpose, such approval constituting the authority for such participation or the incurring of such expense.
(g) Additional authorization. Any emergency, unusual or additional payment deemed necessary under the program if allowable under existing authority, may be authorized whether or not specifically provided for by this part.
(h) Biweekly payment. Unless otherwise specified in the grant, all compensation and allowance for United States participants shall be payable biweekly and shall be computed as follows: An annual rate shall be derived by multiplying a monthly rate by 12; a biweekly rate shall be derived by dividing an annual rate by 26; and a calendar day rate shall be derived by dividing an annual rate by 364. If any maximum compensation or allowance authorized by these regulations or by the terms of any grant is exceeded by this method of computation and payment, such excess payment is hereby authorized. This paragraph may apply to payments made to participants from funds administrered as provided in § 515.2(a) and (b) in the discretion of the department, agency, independent establishment, institution, facility, or organization concerned.
(i) Payments. Payments of benefits authorized under any part of the regulations in this part may be made either by the Department of State or by such department, agency, institution, or facility as may be designated by the Agency.
(j) Duration. The duration of the grant shall be specified in each case.
(k) Cancellation. If a recipient of a grant under this program fails to maintain a satisfactory record or demonstrates unsuitability for furthering the purposes of the program as stated in § 515.1(a), his or her grant shall, in the discretion of the Secretary of State of the Department of State or such officer as he or she may designate, be subject to cancellation.
(l) Outstanding grant authorization. Grants and other authorizations which are outstanding and in effect on the date the present regulations become effective, and which do not conform to this part, shall nevertheless remain in effect and be governed by the regulations under which they were originally issued, unless such grants or other authorizations are specifically amended and made subject to the present regulations in which case the individual concerned will be notified.
PART 64 – PARTICIPATION BY FEDERAL EMPLOYEES IN CULTURAL EXCHANGE PROGRAMS OF FOREIGN COUNTRIES
§ 64.1 Purpose.
This part sets forth the procedures for the application for approval of a cultural exchange program of a foreign government, so that Federal employees may participate in such program; the grant and termination of such approval; and related procedures.
§ 64.2 Definitions.
For the purpose of this part:
(a) Federal employee means: (1) An employee as defined by section 2105 of title 5, United States Code; (2) an individual employed by, or occupying an office or position in, the government of a territory or possession of the United States or the District of Columbia; (3) a member of a uniformed service; (4) the President and Vice President; and (5) a Member of the Senate or the House of Representatives, a Delegate from the District of Columbia in Congress, and the Resident Commissioner from Puerto Rico in Congress.
(b) A foreign government means a foreign government and an official agent or representative thereof; a group of governments and an official agent or representative thereof; an international organization composed of governments, and an official agent or representative thereof.
(c) A program of the type described in section 102(a)(2)(i) of the Act means a cultural exchange program involving “visits and interchanges between the United States and other countries of leaders, experts in fields of specialized knowledge or skill, and other influential or distinguished persons.”
(d) The “purpose stated in section 101 of the Act” is “to enable the Government of the United States to increase mutual understanding between the people of the United States and the people of the other countries by means of educational and cultural exchange; to strengthen the ties which unite us with other nations by demonstrating the educational and cultural interests, developments, and achievements of the people of the United States and other nations, and the contributions being made toward a peaceful and more fruitful life for people throughout the world; to promote international cooperation for educational and cultural advancement; and thus to assist in the development of friendly, sympathetic, and peaceful relations between the United States and the other countries of the world.”
(e) Secretary of State means the Secretary of State of the Department of State.
(f) Department of State means the Department of State.
(g) Act means the Mutual Educational Cultural Exchange Act of 1961, as amended (22 U.S.C. 2451 et seq.).
(h) Member of the family or household of a Federal employee means a relative of the employee by blood, marriage, or adoption or any person who is a resident of the household of the employee.
§ 64.3 Submission of application.
A foreign government intending to provide grants or other assistance to facilitate the participation of Federal employees in a program of cultural exchange shall submit to the Department of State an application for approval of the program through its embassy, mission, or office at Washington, D.C. If there is no embassy, mission, or office at Washington, D.C., of the foreign government the application may be submitted by the home office or headquarters of the foreign government. The application shall be addressed to the Secretary of State.
§ 64.4 Contents of application.
The foreign government shall provide information in the application showing that its program meets the criteria set forth in § 516.5, and shall include in such application the following:
(a) Name and description of the program and the provisions of legislation or regulation authorizing the program;
(b) Number of annual U.S. citizen participants expected, including the number of U.S. Federal employees;
(c) Average duration of stay abroad;
(d) Department of State of the foreign government responsible for the program;
(e) Name and address of contact in the United States with whom communication may be made with respect to the program; in the absence of such a contact in the United States, the name and address of a contact in the home office or headquarters of the foreign government.
§ 64.5 Criteria for approval of program.
To obtain approval of its program of cultural exchanges, a foreign government is required to show that:
(a) The cultural exchange program is of the type described in section 102(a)(2)(i) of the Act;
(b) The cultural exchange program is conducted for a purpose comparable to the purpose stated in section 101 of the Act; and
(c) A grant under such program will not provide assistance with respect to any expenses incurred by or for any member of the family or household of such Federal employee.
§ 64.6 Request for further information.
The Department of State may request the foreign government to supply additional information.
§ 64.7 Approval of application.
The Secretary of State shall review the application and if satisfied that the criteria of § 516.5 are met shall inform the foreign government of the approval of its program.
§ 64.8 Obligation of employee to advise agency.
Any Federal employee receiving any offer of a grant or other assistance under a cultural exchange program approved by the Secretary of State shall advise the employee’s agency of such offer and shall not accept such offer unless the employee’s agency states that it has no objection to such acceptance. In the case of the Department, an employee shall advise the DAEO who may, after consultation with appropriate officials of the Department, furnish a “no objection” statement.
§ 64.9 Termination of approval.
If at any time it appears to the Secretary of State that the purpose of a program which has been approved has been changed so that it no longer meets the criteria of § 516.5 or that the program is being misused, the Secretary of State may terminate such approval, or suspend such approval pending the supplying of additional information. However, a termination or suspension shall not affect a grant which has been made under a previously approved program.
§ 64.10 Grant not to constitute a gift.
A grant made under an approved program shall not constitute a gift for purposes of 22 CFR 10.735-203 and section 7342 of title 5, United States Code.
PART 65 – FOREIGN STUDENTS
§ 65.1 Regulations to be drafted.
Subject to the provisions and requirements of this part, appropriate administrative regulations shall be drafted by each executive department or agency of the Government which maintains and administers educational institutions and schools coming within the scope of the legislation. Such regulations shall carefully observe the limitations imposed by the Act of June 24, 1938, and shall in each case include:
(a) A list of the institutions and courses in the department or agency concerned in which instruction is available under the terms of the legislation.
(b) A statement of the maximum number of students of the other American republics who may be accommodated in each such institution or course at any one time.
(c) A statement of the qualifications to be required of students of the other American republics for admission, including examinations, if any, to be passed.
(d) Provisions to safeguard information that may be vital to the national defense or other interests of the United States.
§ 65.2 Applications.
Applications for citizens of the other American republics to receive the instruction contemplated by the Act of June 24, 1938, shall be made formally through diplomatic channels to the Secretary of State of the Department of State by the foreign governments concerned.
§ 65.3 Reference of applications.
The Secretary of State of the Department of State shall refer the applications to the proper department or agency of the Government for advice as to what reply should be made to the application.
§ 65.4 Copies of regulations to Department of State.
In order to enable the Secretary of State of the Department of State to reply to inquiries received from the governments of the other American republics, the Department of State shall be promptly supplied with copies of the regulations drafted by the other departments and agencies of the Government and of subsequent amendments thereto.
§ 65.5 Granting of application.
Upon receipt of a reply from another department or agency of the Government, as contemplated by § 517.3, in which it is recommended that an application be granted, the Secretary of State of the Department of State shall notify the government of the American republic concerned, through diplomatic channels, that permission to receive the instruction requested in the application is granted, provided the applicant complies with the terms of this part and with the terms of the administrative regulations of the department or agency concerned.
PART 66 – AVAILABILITY OF THE RECORDS OF THE NATIONAL ENDOWMENT FOR DEMOCRACY
§ 66.1 Introduction.
These regulations amend the Code of Federal Regulations to conform with Pub. L. 99-93. Pub. L. 99-93 amended the National Endowment for Democracy Act (22 U.S.C. 4411, et. seq.) to require the National Endowment for Democracy (hereinafter “NED”) to comply fully with the provisions of the Freedom of Information Act (5 U.S.C. 552) (hereinafter “FOIA”), notwithstanding that NED is not an agency or establishment of the United States Government. NED will make information about its operation, organization, procedures and records available to the public in accordance with the provisions of FOIA.
See 22 CFR part 527 for a description of the organization of NED and substantive rules of general applicability formulated and adopted by NED.
§ 66.3 Places at which forms and instructions for use by the public may be obtained.
(a) All forms and instructions pertaining to procedures under FOIA may be obtained from the FOIA officer of the National Endowment for Democracy, 1101 15th St., NW; Suite 700, Washington, D.C. 20005-5000.
(b) Grant guidelines may be obtained from the Program Office of NED to the address shown in paragraph (a) of this section.
(c) General information may be obtained from the Public Affairs Office of NED at the address shown in paragraph (a) of this section.
§ 66.4 Availability of final opinions, orders, policies, interpretations, manuals and instructions.
NED is not an adjudicatory organization and therefore does not issue final opinions and orders made in the adjudication of cases. NED will, however, in accordance with the rules in this section and § 526.7, make available for public inspection and copying those statements of policy and interpretation that have been adopted by NED and are not published in the
(a) Deletion to protect privacy. To the extent required to prevent a clearly unwarranted invasion of personal privacy, NED may delete identifying details when it makes available or publishes a statement of policy, interpretation, or staff manual or instruction. Whenever NED finds any such deletion necessary, the responsible officer or employee must fully explain the justification therefor in writing.
(b) Current index. NED will maintain and make available on its premises for public inspection and copying a current index providing identifying information for the public as to any matter issued, adopted or promulgated after July 4, 1967, and required by this section to be made available or published. NED will provide copies on request at a cost of $0.15 per page.
§ 66.5 Availability of NED records.
Except with respect to the records made available under § 526.4, NED will, upon request that reasonably describes records in accordance with the requirements of this section, and subject to the exemptions listed in 5 U.S.C. 552(b), make such records promptly available to any person.
(a) Requests for records – How made and addressed. (1) Requesters seeking access to NED records under FOIA should direct all requests in writing to: Freedom of Information Act Officer, National Endowment for Democracy, 1101 15th St., NW; Suite 700, Washington, D.C. 20005-5000.
(2) Appeals of denials of initial requests must be addressed to NED in the same manner or to the Department of State pursuant to the procedures set forth at part 171 of this Title, with the addition of the word “APPEAL” preceding the address on the envelope. Appeals addressed directly to the Department of State will not be deemed to have been received by NED for purposes of the time period set forth in 5 U.S.C. 552(a)(6)(A)(1) until actually received by NED. The Department of State shall forward any appeal received by it to NED within 2 working days from the actual day of receipt by the Department of State.
(3) The request letter should contain all available data concerning the desired records, including a description of the material, dates, titles, authors, and other information that may help identify the records. The first paragraph of a request letter should state whether it is an initial request or an appeal.
(b) Administrative time limits. (1) Within 10 working days after NED’s receipt of any request for access to NED records in compliance with paragraph (a) of this section, NED shall make an initial determination whether to provide the requested information and NED shall notify the requester in writing of its initial determination. In the event of an adverse determination, notification shall include the reasons for the adverse determination, the officials responsible for such determination, the right of the requester to appeal within NED, and that the final determination by NED to deny a request for records in whole or in part shall be submitted to the Secretary of State of Department of State for review. NED shall also provide Department of State a copy of its response as soon as practicable after it responds to the requester.
(2) When a request for records has been denied in whole or in part, the requester may, within 30 days of the date of receipt by the requester of the adverse determination from NED, appeal the denial to the President of NED or his designee, who will make a determination whether to grant or deny such appeal within 20 working days of receipt thereof. All appeals should be addressed in compliance with paragraph (a) of this section. If on appeal, the denial of the request for records is upheld, in whole or in part, NED shall notify the requester in writing of such determination, the reasons therefor, the officials responsible for such determination, the right of the requester to judicial review, and that the final determination by NED whether to deny a request for records in whole or in part shall be submitted to the Secretary of State of Department of State for review.
(3) If the requester elects not to appeal to the President of NED or his designee within the appeal period specified above, NED’s initial determination will become the final NED determination upon expiration of said appeal period or receipt by NED of notice from the requester that he does not elect to appeal, whichever is earlier. If the requester chooses to appeal NED’s initial determination within NED, the decision on appeal will become NED’s final determination.
(4)(i) Once NED’s determination to deny a request in whole or in part becomes final, NED shall submit a report to the Secretary of State of Department of State explaining the reasons for such denial no later than 5 working days thereafter.
(ii) The Secretary of State of Department of State shall review NED’s final determination within 20 working days. If the Secretary of State of Department of State or his designee approves NED’s denial in whole or in part, Department of State shall inform the requester and NED in writing of such determination, the reasons therefor, the officials responsible for such determination, and the right of the requester to judicial review of NED’s determination. In the event of such a determination, Department of State shall assume full responsibility, including financial responsibility, for defending NED in any litigation relating to such request.
(iii) If the Secretary of State of Department of State or his designee disapproves NED’s denial in whole or in part, Department of State shall promptly notify NED and thereafter NED shall promptly comply with the request for the pertinent records.
(iv) Because review by the Secretary of State of Department of State may resolve any dispute over access to NED records in the requester’s favor, the requester is encouraged (but not required) to wait for the determination on review by the Secretary of State of Department of State before seeking judicial review of NED’s final determination.
(5) In unusual circumstances as defined in 5 U.S.C. 552(a)(6)(B), the time limit provisions noted in paragraphs (b)(1) and (b)(2) of this section may be extended by written notice to the requester setting forth the reasons for such extension and the date on which a determination can be expected. Such extensions of the time limits may not exceed 10 working days in the aggregate.
(6) Any person making a request for records pursuant to § 526.5 may consider administrative remedies exhausted if NED fails to comply within the applicable time limit provisions of this section. When no determination can be dispatched within the applicable time limits set forth in this section, NED shall nevertheless continue to process the request. On the expiration of the time limit, NED shall inform the requester of the reason for the delay, of the date on which a determination may be expected to be dispatched, and of the requester’s right to treat the delay as a denial and of the requester’s right to appeal. NED may ask the requester to forego appeal until a determination is made. A copy of any such notice of delay will be sent to the Secretary of State of Department of State or to his designee no later than 2 working days after it has been sent to the requester. A court may retain jurisdiction and allow NED additional time to complete its review of the records, if it can be determined that exceptional circumstances exist and that NED is exercising due diligence in responding to the request.
(c) Definitions governing schedule of standard fees and fee waivers. For purposes of these regulations governing fees and fee waivers:
(1) All of the terms defined in FOIA apply;
(2) A statute specifically providing for setting the level of fees for particular types of records means any statute that specifically requires the NED to set the level of fees for particular types of records;
(3) The term direct costs means those expenditures that NED actually incurs in searching for and duplicating (and in the case of commercial requesters, reviewing) documents, photographs, drawings or any other material to respond to a FOIA request. [Direct costs include the salary of the employee performing the work (the basic rate of pay for the employee plus 16% of that rate to cover benefits) and the cost of operating duplicating machinery. Not included in direct costs are overhead expenses such as costs of space, any heating or lighting, the facility in which the records are stored];
(4) The term search includes all time spent looking for material that is responsive to a request, including page by page or line by line identification of material within documents. Searches shall be conducted to ensure that they are undertaken in the most efficient and least expensive manner so as to minimize costs for both NED and the requester. “Search” is distinguished from “review” of material in order to determine whether the material is exempt from disclosure (see subparagraph (c)(6) below);
(5) The term duplication refers to the process of making a copy of a document, drawing, photograph, or any other material necessary to respond to a FOIA request. The copy provided by NED will be in a form that is reasonably usable by requesters;
(6) The term review refers to the process of examining documents that are located in response to a request that is for a commercial use (see subparagraph (c)(7) below) to determine whether any portion of any document located is permitted to be withheld. It also includes processing any documents for disclosure, e.q., doing all that is necessary to excise them and otherwise prepare them for release. Review does not include time spent resolving general legal or policy issues regarding the application of exemptions;
(7) The term ‘commercial use’ requests refers to a request from or on behalf of one who seeks information for a use or purpose that furthers the commercial, trade, or profit interests of the requester or the person on whose behalf the request is made. In determining whether a requester properly belongs in this category, NED will determine the use to which a requester will put the documents requested. Where NED has reasonable cause to doubt the use to which a requester will put the records sought, or where that use is not clear from the request itself, NED will seek additional clarification before assigning the request to a specific category;
(8) The term educational institution refers to a preschool, a public or private elementary or secondary school, an institution of graduate higher education, an institution of undergraduate higher education, an institution of professional education, and an institution of vocational education, that operates a program or programs of scholarly study and/or research;
(9) The term non-commercial scientific institution refers to an institution that is not operated on a “commercial” basis as that term is referenced in paragraph (c)(7) of this section and that is operated solely for the purpose of conducting scientific research, the results of which are not intended to promote any particular product or industry;
(10) The term representative of the news media refers to any person actively gathering news for an entity that is organized and operated to publish or broadcast news to the public. The term “news” means information that is about current events or that would be of current interest to the public. Examples of news media entities include television or radio stations that broadcast to the public at large, and publishers of periodicals (but only in those instances when they can qualify as disseminators of “news”) who make their products available for purchase or subscription by the general public. These examples are not intended to be all-inclusive. In the case of “free-lance” journalists, such journalists may be regarded as working for a news organization if they can demonstrate a solid basis for expecting publication through that organization even though they are not actually employed by a news organization. A publication contract would be the clearest proof, but NED will also look to the past publication record of a requester in making this determination.
(d) Fees to be charged – general. NED shall charge fees that recoup the full allowable direct costs it incurs. NED shall use the most efficient and least costly methods to comply with requests for documents, drawings, photographs, and any other materials made under the FOIA.
(e) Specific fees. The specific fees for which NED shall charge the requester when so required by the FOIA are as follows:
(1) Manual searches for records – $8.00 per hour for clerical personnel; $15.00 per hour for supervisory personnel;
(2) Computer searches for records – In any case where a computer search is possible and the most efficient means by which to conduct a search, NED will charge the cost of operating the central processing unit for that portion of operating time that is directly attributable to searching for records responsive to a FOIA request and the operator-programmer salary apportionable to the search. The charge for the cost of the operator-programmer time shall be based on the salary of the operator-programmer plus 16 percent;
(3) Review of records – Requesters who seek documents for commercial use shall be charged for the time NED spends reviewing records to determine whether such records are exempt from mandatory disclosure. These charges shall be assessed only for the initial review; i.e., the review undertaken the first time NED analyzes the applicability of a specific exemption to a particular record or portion of a record. Neither NED nor the Department of State will charge for review at the administrative appeal level for an exemption already applied. However, NED will charge for review of records or portions of records withheld in full under an exemption that is subsequently determined not to apply. The fee for review as that term is used in these regulations shall be $15.00 per hour;
(4) Duplication of records – (i) making photocopies – 15¢ per page; (ii) for copies prepared by computer, such as tapes or printouts, NED shall charge the actual cost, including operator time, of production of the tape or printout; (iii) for other methods of reproduction or duplication, NED shall charge the actual direct costs of producing the document(s);
(5) Other charges – (i) there shall be no fee for a signed statement of non-availability of a record; (ii) NED will not incur expenses arising out of sending records by special methods such as express mail;
(6) Restrictions on assessing fees – With the exception of requesters seeking documents for a commercial use, section (a)(4)(A)(iv) of the Freedom of Information Act, as amended, requires NED to provide the first 100 pages of duplication and the first two hours of search time without charge. NED shall not charge fees to any requester, including commercial use requesters, if the cost of collecting a fee would be equal to or greater than the fee itself. NED will not begin to assess fees until it has first provided the above-referenced free search and reproduction. The elements to be considered in determining the “cost of collecting a fee” are the administrative costs to NED of receiving and recording a requester’s remittance and processing the fee for deposit in NED’s account. For purposes of these restrictions on assessment of fees, the word “pages” refers to paper copies of a standard size, which will normally be 8
(f) Fees to be charged – categories of requesters. There are four categories of FOIA requesters: commercial use requesters; educational and non-commercial scientific institutions; representatives of the news media; and all other requesters. The fees to be charged each of these categories of requesters are as follows:
(1) Commercial use requesters – when NED receives a request for documents for commercial use, it shall assess charges that recover the full direct costs of searching for, reviewing for release, and duplicating the records sought. Commercial use requesters are entitled to neither two hours of free search time nor 100 free pages of reproduction of documents. NED shall recover the cost of searching for and reviewing records even if there is ultimately no disclosure of records. Requesters must reasonably describe the records sought;
(2) Educational and non-commercial scientific institution requesters – NED shall provide documents to educational and non-commercial scientific institution requesters for the cost of reproduction alone, excluding charges for the first 100 pages of duplication. To be eligible for inclusion in this category, requesters must show that the request is being made as authorized by and under the auspices of a qualifying institution and that the records are not sought for a commercial use, but are sought in furtherance of scholarly (if the request is from an educational institution) or scientific (if the request is from a non-commercial scientific institution) research. Requesters must reasonably describe the records sought;
(3) Requesters who are representatives of the news media – NED shall provide documents to requesters who are representatives of the news media for the cost of reproduction alone, excluding charges for the first 100 pages. To be eligible for inclusion in this category, a requester must meet the criteria in subsection (c)(10) above, and the request must not be made for a commercial use. A request for records supporting the news-dissemination function of the requester shall not be considered to be a request that is for a commercial use. Requesters must reasonably describe the records sought;
(4) All other requesters – NED shall charge requesters who do not fit into any of the above categories those fees that recover the full reasonable direct costs of searching for and reproducing records that are responsive to the request, except that the first 100 pages of reproduction and the first two hours of search time shall be furnished without charge. Requesters must reasonably describe the records sought.
(g) Assessment and collection of fees. (1) NED shall assess interest charges on an unpaid bill starting on the 31st day following the day on which the billing was sent. The fact that the fee has been received by NED, even if not processed, will suffice to stay the accrual of interest. Interest will be at the rate prescribed in section 3717 of title 31 of the United States Code and will accrue from the date of the billing.
(2) Charges for unsuccessful searches – If NED estimates that search charges are likely to exceed $25.00, it shall notify the requester of the estimated amount of fees unless the requester has indicated in advance a willingness to pay fees as high as those anticipated. Such notice shall offer the requester the opportunity to confer with agency personnel with the object of reformulating the request to meet the requester’s needs at a lower cost. Dispatch of such a notice of request shall suspend the running of the period for response by NED until a reply is received from the requester.
(3) Aggregating requests – Except for requests that are for a commercial use, NED shall not charge for the first two hours of search time or for the first 100 pages of reproduction. However, a requester may not file multiple requests at the same time, each seeking portions of a document or documents, solely in order to avoid payment of fees. When NED reasonably believes that a requester or a group of requesters acting in concert are attempting to divide a request into a series of requests for the purpose of evading the assessment of fees, NED shall aggregate any such requests and charge accordingly. One element to be considered in determining whether a belief would be reasonable is the time period in which the requests have been made. Before aggregating requests from more than one requester, NED must have a concrete basis on which to conclude that the requesters are acting in concert and are acting specifically to avoid payment of fees. In no case shall NED aggregate multiple requests on unrelated subjects from one requester.
(4) Advance payments – NED shall not require payment for fees before work has commenced or continued on a request unless:
(i) NED estimates or determines that allowable charges that a requester may be required to pay are likely to exceed $250.00. In this event, NED shall notify the requester of the likely cost and may require an advance payment of an amount up to the full amount of estimated charges; or
(ii) A requester has previously failed to pay a fee charged within 30 days of the date of billing.
(iii) When NE