supporting CFR

Department of Homeland Security

§ 212.1

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.
[73 FR 18415, Apr. 3, 2008]

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§ 212.1 Documentary requirements for
nonimmigrants.
A valid unexpired visa and an unexpired passport, valid for the period set
forth in section 212(a)(26) of the Act,
shall be presented by each arriving
nonimmigrant alien except that the
passport validity period for an applicant for admission who is a member of
a class described in section 102 of the
Act is not required to extend beyond
the date of his application for admission if so admitted, and except as otherwise provided in the Act, this chapter, and for the following classes:
(a) Citizens of Canada or Bermuda, Bahamian nationals or British subjects resident in certain islands. (1) Canadian citizens. A visa is generally not required
for Canadian citizens, except those Canadians that fall under nonimmigrant
visa categories E, K, S, or V as provided in paragraphs (h), (l), and (m) of
this section and 22 CFR 41.2. A valid
unexpired passport is required for Canadian citizens arriving in the United
States, except when meeting one of the
following requirements:
(i) 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
(h), (l), and (m) of this section and 22
CFR 41.2, may present a valid unexpired 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
valid unexpired NEXUS program card.

(ii) 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 (h), (l),
and (m) of this section and 22 CFR 41.2,
may present a valid unexpired FAST
card at a land or sea port-of-entry prior
to entering the United States from
contiguous territory or adjacent islands.
(iii) 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
(h), (l), and (m) of this section and 22
CFR 41.2, may present a valid unexpired SENTRI card at a land or sea
port-of-entry prior to entering the
United States from contiguous territory or adjacent islands.
(iv) Canadian Indians. If designated
by the Secretary of Homeland Security, a Canadian citizen holder of a 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.
(v) Children. A child who is a Canadian citizen arriving from contiguous
territory may present for admission to
the United States at sea or land portsof-entry certain other documents if the
arrival meets the requirements described below.
(A) 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 portsof-entry.
(B) Groups of Children Under Age 19. A
Canadian citizen, under age 19 who is
traveling with a public or private
school group, religious group, social or
cultural organization, or team associated with a youth sport organization is

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§ 212.1

8 CFR Ch. I (1–1–11 Edition)

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 portsof-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:
(1) The group, organization, or team
must provide to CBP upon crossing the
border, on organizational letterhead:
(i) The name of the group, organization or team, and the name of the supervising adult;
(ii) A trip itinerary, including the
stated purpose of the trip, the location
of the destination, and the length of
stay;
(iii) A list of the children on the trip;
(iv) For each child, the primary address, primary phone number, date of
birth, place of birth, and name of a parent or legal guardian.
(2) The adult leading the group, organization, or team must demonstrate
parental or legal guardian consent by
certifying in the writing submitted in
paragraph (a)(1)(v)(B)(1) of this section
that he or she has obtained for each
child the consent of at least one parent
or legal guardian.
(3) The inspection 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 this part or parts
211 or 235 of this subchapter.
(2) Citizens of the British Overseas Territory of Bermuda. A visa is generally
not required for Citizens of the British
Overseas Territory of Bermuda, except
those Bermudians that fall under nonimmigrant visa categories E, K, S, or V
as provided in paragraphs (h), (l), and
(m) of this section and 22 CFR 41.2. A
passport is required for Citizens of the
British Overseas Territory of Bermuda
arriving in the United States.

(3) Bahamian nationals or British subjects resident in the Bahamas. A passport
is required. A visa required of such an
alien unless, prior to or at the time of
embarkation for the United States on a
vessel or aircraft, the alien satisfied
the examining U.S. immigration officer
at the Bahamas, that he or she is clearly and beyond a doubt entitled to admission, under section 212(a) of the Immigration and Nationality Act, in all
other respects.
(4) British subjects resident in the Cayman Islands or in the Turks and Caicos
Islands. A passport is required. A visa
is required of such an alien unless he or
she arrives directly from the Cayman
Islands or the Turks and Caicos Islands
and presents a current certificate from
the Clerk of Court of the Cayman Islands or the Turks and Caicos Islands
indicating no criminal record.
(b) Certain Caribbean residents—(1)
British, French, and Netherlands nationals, and nationals of certain adjacent islands of the Caribbean which are independent countries. A visa is not required
of a British, French, or Netherlands national, or of a national of Barbados,
Grenada, Jamaica, or Trinidad and Tobago, who has his or her residence in
British, French, or Netherlands territory located in the adjacent islands of
the Caribbean area, or in Barbados,
Grenada, Jamaica, or Trinidad and Tobago, who:
(i) Is proceeding to the United States
as an agricultural worker;
(ii) Is the beneficiary of a valid, unexpired indefinite certification granted
by the Department of Labor for employment in the Virgin Islands of the
United States and is proceeding to the
Virgin Islands of the United States for
such purpose, or
(iii) Is the spouse or child of an alien
described in paragraph (b)(1)(i) or
(b)(1)(ii) of this section, and is accompanying or following to join him or
her.
(2) Nationals of the British Virgin Islands. A visa is not required of a national of the British Virgin Islands who
has his or her residence in the British
Virgin Islands, if:
(i) The alien is seeking admission
solely to visit the Virgin Islands of the
United States; or

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Department of Homeland Security

§ 212.1

(ii) At the time of embarking on an
aircraft at St. Thomas, U.S. Virgin Islands, the alien meets each of the following requirements:
(A) The alien is traveling to any
other part of the United States by aircraft as a nonimmigrant visitor for
business or pleasure (as described in
section 101(a)(15)(B) of the Act);
(B) The alien satisfies the examining
U.S. Immigration officer at the port-ofentry that he or she is clearly and beyond a doubt entitled to admission in
all other respects; and
(C) The alien presents a current Certificate of Good Conduct issued by the
Royal Virgin Islands Police Department indicating that he or she has no
criminal record.
(c) Mexican nationals. (1) A visa and a
passport are not required of a Mexican
national who:
(i) Is applying for admission as a
temporary visitor for business or pleasure from Mexico at a land port-ofentry, 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 issued by the Department of State, containing a machinereadable biometric identifier; or.
(ii) 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.
(2) A visa shall not be required of a
Mexican national who:
(i) Is in possession of a Form DSP–
150, with a biometric identifier, issued
by the DOS, and a passport, and is applying for admission as a temporary
visitor for business or pleasure from
other than contiguous territory;
(ii) Is a crew member employed on an
aircraft belonging to a Mexican company owned carrier authorized to engage in commercial transportation
into the United States; or
(iii) Bears a Mexican diplomatic or
official passport and who is a military
or civilian official of the Federal Government of Mexico entering the United
States for 6 months or less for a purpose other than on assignment as a
permanent employee to an office of the
Mexican Federal Government in the

United States, and the official’s spouse
or any of the official’s dependent family members under 19 years of age,
bearing diplomatic or official passports, who are in the actual company
of such official at the time of admission into the United States. This provision does not apply to the spouse or
any of the official’s family members
classifiable under section 101(a)(15)(F)
or (M) of the Act.
(3) A Mexican national who presents
a BCC at a POE must present the DOSissued DSP–150 containing a machinereadable biometric identifier. The alien
will not be permitted to cross the border into the United States unless the
biometric identifier contained on the
card matches the appropriate biometric characteristic of the alien.
(4) Mexican nationals presenting a
combination B–1/B–2 nonimmigrant
visa and border crossing card (or similar stamp in a passport), issued by DOS
prior to April 1, 1998, that does not contain a machine-readable biometric
identifier, may be admitted on the
basis of the nonimmigrant visa only,
provided it has not expired and the
alien remains admissible. A passport is
also required.
(5) Aliens entering pursuant to International Boundary and Water Commission Treaty. A visa and a passport are
not required of an alien employed either directly or indirectly on the construction, operation, or maintenance of
works in the United States undertaken
in accordance with the treaty concluded on February 3, 1944, between the
United States and Mexico regarding
the functions of the International
Boundary and Water Commission, and
entering the United States temporarily
in connection with such employment.
(d) Citizens of the Freely Associated
States, formerly Trust Territory of the Pacific Islands. Citizens of the Republic of
the Marshall Islands and the Federated
States of Micronesia may enter into,
lawfully engage in employment, and
establish residence in the United
States and its territories and possessions without regard to paragraphs
(14), (20) and (26) of section 212(a) of the
Act pursuant to the terms of Pub. L.

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§ 212.1

8 CFR Ch. I (1–1–11 Edition)

99–239. Pending issuance by the aforementioned governments of travel documents to eligible citizens, travel documents previously issued by the Trust
Territory of the Pacific Islands will
continue to be accepted for purposes of
identification and to establish eligibility for admission into the United
States, its territories and possessions.
(e) Aliens entering Guam pursuant to
section 14 of Pub. L. 99–396, ‘‘Omnibus
Territories Act.’’ (1) Until November 28,
2009, a visa is not required of an alien
who is a citizen of a country enumerated in paragraph (e)(3) of this section
who:
(i) Is classifiable as a vistor for business or pleasure;
(ii) Is solely entering and staying on
Guam for a period not to exceed fifteen
days;
(iii) Is in possession of a round-trip
nonrefundable
and
nontransferable
transportation ticket bearing a confirmed departure date not exceeding
fifteen days from the date of admission
to Guam;
(iv) Is in possession of a completed
and signed Visa Waiver Information
Form (Form I–736);
(v) Waives any right to review or appeal the immigration officer’s determination of admissibility at the port of
entry at Guam; and
(vi) Waives any right to contest any
action for deportation, other than on
the basis of a request for asylum.
(2) An alien is eligible for the waiver
provision if all of the eligibility criteria in paragraph (e)(1) of this section
have been met prior to embarkation
and the alien is a citizen of a country
that:
(i) Has a visa refusal rate of 16.9% or
less, or a country whose visa refusal
rate exceeds 16.9% and has an established preinspection or preclearance
program, pursuant to a bilateral agreement with the United States under
which its citizens traveling to Guam
without a valid United States visa are
inspected by the Immigration and Naturalization Service prior to departure
from that country;
(ii) Is within geographical proximity
to Guam, unless the country has a substantial volume of nonimmigrant admissions to Guam as determined by the
Commissioner and extends reciprocal

privileges to citizens of the United
States;
(iii) Is not designated by the Department of State as being of special humanitarian concern; and
(iv) Poses no threat to the welfare,
safety or security of the United States,
its territories, or commonwealths.
Any potential threats to the welfare,
safety, or security of the United
States, its territories, or commonwealths will be dealt with on a country
by country basis, and a determination
by the Commissioner of the Immigration and Naturalization Service that a
threat exists will result in the immediate deletion of that country from the
listing in paragraph (e)(3) of this section.
(3)(i) The following geographic areas
meet the eligibility criteria as stated
in paragraph (e)(2) of this section: Australia, Brunei, Indonesia, Japan, Malaysia, Nauru, New Zealand, Papua
New Guinea, Republic of Korea, Singapore, Solomon Islands, Taiwan (residents thereof who begin their travel in
Taiwan and who travel on direct flights
from Taiwan to Guam without an intermediate layover or stop except that
the flights may stop in a territory of
the United States enroute), the United
Kingdom (including the citizens of the
colony of Hong Kong), Vanuatu, and
Western Samoa. The provision that
flights transporting residents of Taiwan to Guam may stop at a territory of
the United States enroute may be rescinded whenever the number of inadmissible passengers arriving in Guam
who have transited a territory of the
United States enroute to Guam exceeds
20 percent of all the inadmissible passengers arriving in Guam within any
consecutive two-month period. Such
rescission will be published in the FEDERAL REGISTER.
(ii) For the purposes of this section,
the term citizen of a country as used in
8 CFR 212.1(e)(1) when applied to Taiwan refers only to residents of Taiwan
who are in possession of Taiwan National Identity Cards and a valid Taiwan passport with a valid re-entry permit issued by the Taiwan Ministry of
Foreign Affairs. It does not refer to
any other holder of a Taiwan passport
or a passport issued by the People’s Republic of China.

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Department of Homeland Security

§ 212.1

(4) Admission under this section renders an alien ineligible for:
(i) Adjustment of status to that of a
temporary resident or, except as provided by section 245(i) of the Act or as
an immediate relative as defined in
section 201(b) of the Act, to that of a
lawful permanent resident.
(ii) Change of nonimmigrant status;
or
(iii) Extension of stay.
(5) A transportation line bringing
any alien to Guam pursuant to this
section shall:
(i) Enter into a contract on Form I–
760, made by the Commissioner of the
Immigration and Naturalization Service in behalf of the government;
(ii) Transport only an alien who is a
citizen and in possession of a valid
passport of a country enumerated in
paragraph (e)(3) of this section;
(iii) Transport only an alien in possession of a round-trip, nontransferable
transportation ticket:
(A) Bearing a confirmed departure
date not exceeding fifteen days from
the date of admission to Guam,
(B) Valid for a period of not less than
one year,
(C) Nonrefundable except in the country in which issued or in the country of
the alien’s nationality or residence,
(D) Issued by a carrier which has entered into an agreement described in
part (5)(i) of this section, and
(E) Which the carrier will unconditionally honor when presented for return passage; and
(iv) Transport only an alien in possession of a completed and signed Visa
Waiver Information Form I–736.
(f) Direct transits. (1)–(2) [Reserved]
(3) Foreign government officials in transit. If an alien is of the class described
in section 212(d)(8) of the Act, only a
valid unexpired visa and a travel document valid for entry into a foreign
country for at least 30 days from the
date of admission to the United States
are required.
(g) Unforeseen emergency. A nonimmigrant seeking admission to the
United States must present an unexpired visa and passport valid for the
amount of time set forth in section
212(a)(7)(B) of the Act, 8 U.S.C.
1182(a)(7), or a valid biometric border
crossing card, issued by the DOS on

Form DSP–150, at the time of application for admission, unless the nonimmigrant satisfies the requirements
described in one or more of the paragraphs (a) through (f) or (i), (o), or (p)
of this section. Upon a nonimmigrant’s
application on Form I–193, ‘‘Application
for Waiver of Passport and/or Visa,’’ a
district director may, in the exercise of
his or her discretion, on a case-by-case
basis, waive the documentary requirements, if satisfied that the nonimmigrant cannot present the required
documents because of an unforeseen
emergency. The district director may
at any time revoke a waiver previously
authorized pursuant to this paragraph
and notify the nonimmigrant in writing to that effect.
(h) Nonimmigrant spouses, fiance´es,
fiance´s, and children of U.S. citizens.
Notwithstanding any of the provisions
of this part, an alien seeking admission
as a spouse, fiance´e, fiance´, or child of
a U.S. citizen, or as a child of the
spouse, fiane´, or finace´e of a U.S. citizen, pursuant to section 101(a)(15)(K)
of the Act shall be in possession of an
unexpired nonimmigrant visa issued by
an
American
consular
officer
classifying the alien under that section, or be inadmissible under section
212(a)(7)(B) of the Act.
(i) Visa Waiver Pilot Program. A visa is
not required of any alien who is eligible to apply for admission to the
United States as a Visa Waiver Pilot
Program applicant pursuant to the provisions of section 217 of the Act and
part 217 of this chapter if such alien is
a national of a country designated
under the Visa Waiver Pilot Program,
who seeks admission to the United
States for a period of 90 days or less as
a visitor for business or pleasure.
(j) Officers authorized to act upon recommendations of United States consular
officers for waiver of visa and passport requirements. All district directors, the
officers in charge are authorized to act
upon recommendations made by United
States consular officers or by officers
of the Visa Office, Department of
State, pursuant to the provisions of 22
CFR 41.7 for waiver of visa and passport requirements under the provisions
of section 212(d)(4)(A) of the Act. The
District Director at Washington, DC,

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§ 212.1

8 CFR Ch. I (1–1–11 Edition)

has jurisdiction in such cases recommended to the Service at the seat of
Government level by the Department
of State. Neither an application nor fee
are required if the concurrence in a
passport or visa waiver is requested by
a U.S. consular officer or by an officer
of the Visa Office. The district director
or the Deputy Commissioner, may at
any time revoke a waiver previously
authorized pursuant to this paragraph
and notify the nonimmigrant alien in
writing to that effect.
(k) Cancellation of nonimmigrant visas
by immigration officers. Upon receipt of
advice from the Department of State
that a nonimmigrant visa has been revoked or invalidated, and request by
that Department for such action, immigration officers shall place an appropriate endorsement thereon.
(l) Treaty traders and investors. Notwithstanding any of the provisions of
this part, an alien seeking admission as
a treaty trader or investor under the
provisions of Chapter 16 of the North
American
Free
Trade
Agreement
(NAFTA)
pursuant
to
section
101(a)(15)(E) of the Act, shall be in possession of a nonimmigrant visa issued
by an American consular officer
classifying the alien under that section.
(m) Aliens in S classification. Notwithstanding any of the provisions of this
part, an alien seeking admission pursuant to section 101(a)(15)(S) of the Act
must be in possession of appropriate
documents issued by a United States
consular officer classifying the alien
under that section.
(n) Alien in Q–2 classification. Notwithstanding any of the provisions of
this part, an alien seeking admission as
a principal according to section
101(a)(15)(Q)(ii) of the Act must be in
possession of a Certification Letter
issued by the Department of State’s
Program Administrator documenting
participation in the Irish peace process
cultural and training programs.
(o) Alien in T–2 through T–4 classification. Individuals seeking T–2 through
T–4 nonimmigrant status may avail
themselves of the provisions of paragraph (g) of this section, except that
the authority to waive documentary

requirements resides with the Service
Center.
(Secs. 103, 104, 212 of the Immigration and
Nationality Act, as amended (8 U.S.C. 1103,
1104, 1132))

(p) Alien in U–1 through U–5 classification. Individuals seeking U–1 through
U–5 nonimmigrant status may avail
themselves of the provisions of paragraph (g) of this section, except that
the authority to waive documentary
requirements resides with the director
of the USCIS office having jurisdiction
over the adjudication of Form I–918,
‘‘Petition for U Nonimmigrant Status.’’
(q) Aliens admissible under the GuamCNMI Visa Waiver Program. (1) Eligibility
for Program. In accordance with Public
Law 110–229, beginning November 28,
2009, the Secretary, in consultation
with the Secretaries of the Departments of Interior and State, may waive
the visa requirement in the case of a
nonimmigrant alien who seeks admission to Guam or to the Commonwealth
of the Northern Mariana Islands
(CNMI) under the Guam-CNMI Visa
Waiver Program. To be admissible
under the Guam-CNMI Visa Waiver
Program, prior to embarking on a carrier for travel to Guam or the CNMI,
each nonimmigrant alien must:
(i) Be a national of a country or geographic area listed in paragraph (q)(2)
of this section;
(ii) Be classifiable as a visitor for
business or pleasure;
(iii) Be solely entering and staying
on Guam or the CNMI for a period not
to exceed forty-five days;
(iv) Be in possession of a round trip
ticket that is nonrefundable and nontransferable and bears a confirmed departure date not exceeding forty-five
days from the date of admission to
Guam or the CNMI. ‘‘Round trip ticket’’
includes any return trip transportation
ticket issued by a participating carrier,
electronic ticket record, airline employee passes indicating return passage, individual vouchers for return
passage, group vouchers for return passage for charter flights, or military
travel orders which include military
dependents for return to duty stations
outside the United States on U.S. military flights;

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Department of Homeland Security

§ 212.1

(v) Be in possession of a completed
and signed Guam-CNMI Visa Waiver Information Form (CBP Form I–736);
(vi) Be in possession of a completed
and signed I–94, Arrival-Departure
Record (CBP Form I–94);
(vii) Be in possession of a valid unexpired ICAO compliant, machine readable passport issued by a country that
meets the eligibility requirements of
paragraph (q)(2) of this section;
(viii) Have not previously violated
the terms of any prior admissions.
Prior admissions include those under
the Guam-CNMI Visa Waiver Program,
the prior Guam Visa Waiver Program,
the Visa Waiver Program as described
in section 217(a) of the Act and admissions pursuant to any immigrant or
nonimmigrant visa;
(ix) Waive any right to review or appeal an immigration officer’s determination of admissibility at the port of
entry into Guam or the CNMI;
(x) Waive any right to contest any
action for deportation or removal,
other than on the basis of: An application for withholding of removal under
section 241(b)(3) of the INA; withholding or deferral of removal under
the regulations implementing Article 3
of the United Nations Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; or, an application for asylum
if permitted under section 208 of the
Act; and
(xi) If a resident of Taiwan, possess a
Taiwan National Identity Card and a
valid Taiwan passport with a valid reentry permit issued by the Taiwan
Ministry of Foreign Affairs.
(2) Program Countries and Geographic
Areas. (i) General Eligibility Criteria.
(A) A country or geographic area
may not participate in the Guam-CNMI
Visa Waiver Program if the country or
geographic area poses a threat to the
welfare, safety or security of the
United States, its territories, or commonwealths;
(B) A country or geographic area
may not participate in the Guam-CNMI
Visa Waiver Program if it has been designated a Country of Particular Concern under the International Religious
Freedom Act of 1998 by the Department
of State, or identified by the Department of State as a source country of

refugees designated of special humanitarian concern to the United States;
(C) A country or geographic area may
not participate in the Guam-CNMI Visa
Waiver Program if that country, not
later than three weeks after the
issuance of a final order of removal,
does not accept for repatriation any
citizen, former citizen, or national of
the country against whom a final executable order of removal is issued.
Nothing in this subparagraph creates
any duty for the United States or any
right for any alien with respect to removal or release. Nothing in this subparagraph gives rise to any cause of action or claim under this paragraph or
any other law against any official of
the United States or of any State to
compel the release, removal or reconsideration for release or removal of any
alien.
(D) DHS may make a determination
regarding a country’s eligibility based
on other factors including, but not limited to, rate of refusal for nonimmigrant visas, rate of overstays, cooperation in information exchange
with the United States, electronic
travel authorizations, and any other
factors deemed relevant by DHS.
(ii) Eligible Countries and Geographic
Areas. Nationals of the following countries and geographic areas are eligible
to participate in the Guam-CNMI Visa
Waiver Program for purposes of admission to both Guam and the CNMI: Australia, Brunei, Hong Kong (Hong Kong
Special Administrative Region (SAR)
passport and Hong Kong identification
card are required), Japan, Malaysia,
Nauru, New Zealand, Papua New Guinea, Republic of Korea, Singapore, Taiwan (residents thereof who begin their
travel in Taiwan and who travel on direct flights from Taiwan to Guam or
the CNMI without an intermediate layover or stop except that the flights
may stop in a territory of the United
States enroute), and the United Kingdom.
(iii) Significant Economic Benefit Criteria. If, in addition to the considerations enumerated under paragraph
(q)(2)(i) of this section, DHS determines that the CNMI has received a
significant economic benefit from the
number of visitors for pleasure from
particular countries during the period

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§ 212.1

8 CFR Ch. I (1–1–11 Edition)

of May 8, 2007 through May 8, 2008,
those countries are eligible to participate in the Guam-CNMI Visa Waiver
Program unless the Secretary of Homeland Security determines that such
country’s inclusion in the Guam-CNMI
Visa Waiver Program would represent
a threat to the welfare, safety, or security of the United States and its territories.
(iv) Additional Eligible Countries or Geographic Areas Based on Significant Economic Benefit. [Reserved]
(3) Suspension of Program Countries or
Geographic Areas. (i) Suspension of a
country or geographic area from the
Guam-CNMI Visa Waiver Program may
be made on a country-by-country basis
for good cause including, but not limited to if: The admissions of visitors
from a country have resulted in an unacceptable number of visitors from a
country remaining unlawfully in Guam
or the CNMI, unlawfully obtaining
entry to other parts of the United
States, or seeking withholding of removal or seeking asylum; or that visitors from a country pose a risk to law
enforcement or security interests, including the enforcement of immigration laws of Guam, the CNMI, or the
United States.
(ii) A country or geographic area
may be suspended from the GuamCNMI Visa Waiver Program if that
country or geographic area is designated as a Country of Particular Concern under the International Religious
Freedom Act of 1998 by the Department
of State, or identified by the Department of State as a source country of
refugees designated of special humanitarian concern to the United States,
pending an evaluation and determination by the Secretary.
(iii) A country or geographic area
may be suspended from the GuamCNMI Visa Waiver Program by the Secretary of Homeland Security, in consultation with the Secretary of the Interior and the Secretary of State,
based on the evaluation of all factors
the Secretary deems relevant including, but not limited to, electronic travel authorization, procedures for reporting lost and stolen passports, repatriation of aliens, rates of refusal for nonimmigrant visitor visas, overstays, exit
systems and information exchange.

(4) Admission under this section renders an alien ineligible for:
(i) Adjustment of status to that of a
temporary resident or, except as provided by section 245(i) of the Act or as
an immediate relative as defined in
section 201(b) of the Act, to that of a
lawful permanent resident.
(ii) Change of nonimmigrant status;
or
(iii) Extension of stay.
(5) Requirements for transportation
lines. A transportation line bringing
any alien to Guam or the CNMI pursuant to this section must:
(i) Enter into a contract on CBP
Form I–760, made by the Commissioner
of Customs and Border Protection on
behalf of the government;
(ii) Transport an alien who is a citizen or national and in possession of a
valid unexpired ICAO compliant, machine readable passport of a country
enumerated in paragraph (q)(2) of this
section;
(iii) Transport an alien only if the
alien is in possession of a round trip
ticket as defined in paragraph (q)(1)(iv)
of this section bearing a confirmed departure date not exceeding forty-five
days from the date of admission to
Guam or the CNMI which the carrier
will unconditionally honor when presented for return passage. This ticket
must be:
(A) Valid for a period of not less than
one year,
(B) Nonrefundable except in the
country in which issued or in the country of the alien’s nationality or residence, and
(C) Issued by a carrier which has entered into an agreement described in
paragraph (q)(5) of this section.
(iv) Transport an alien in possession
of a completed and signed Guam-CNMI
Visa Waiver Information Form (CBP
Form I–736), and
(v) Transport an alien in possession
of completed I–94, Arrival-Departure
Record (CBP Form I–94).
(6) Bonding. The Secretary may require a bond on behalf of an alien seeking admission under the Guam-CNMI
Visa Waiver Program, in addition to
the requirements enumerated in this
section, when the Secretary deems it

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wwoods2 on DSK1DXX6B1PROD with CFR

Department of Homeland Security

§ 212.1

appropriate. Such bonds may be required of an individual alien or of an
identified subset of participants.
(7) Maintenance of status—(i) Satisfactory departure. If an emergency prevents an alien admitted under the
Guam-CNMI Visa Waiver Program, as
set forth in this paragraph (q), from departing from Guam or the CNMI within
his or her period of authorized stay, an
immigration officer having jurisdiction
over the place of the alien’s temporary
stay may, in his or her discretion,
grant a period of satisfactory departure
not to exceed 15 days. If departure is
accomplished during that period, the
alien is to be regarded as having satisfactorily accomplished the visit without overstaying the allotted time.
(8) Inadmissibility and Deportability—
(i) Determinations of inadmissibility. (A)
An alien who applies for admission
under the provisions of the GuamCNMI Visa Waiver Program, who is determined by an immigration officer to
be inadmissible to Guam or the CNMI
under one or more of the grounds of inadmissibility listed in section 212 of
the Act (other than for lack of a visa),
or who is in possession of and presents
fraudulent or counterfeit travel documents, will be refused admission into
Guam or the CNMI and removed. Such
refusal and removal shall be effected
without referral of the alien to an immigration judge for further inquiry, examination, or hearing, except that an
alien who presents himself or herself as
an applicant for admission to Guam
under the Guam-CNMI Visa Waiver
Program, who applies for asylum, withholding of removal under section
241(b)(3) of the INA or withholding or
deferral of removal under the regulations implementing Article 3 of the
United Nations Convention Against
Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment
must be issued a Form I–863, Notice of
Referral to Immigration Judge, for a
proceeding in accordance with 8 CFR
208.2(c)(1) and (2). The provisions of 8
CFR subpart 208 subpart A shall not
apply to an alien present or arriving in
the CNMI seeking to apply for asylum
prior to January 1, 2015. No application
for asylum may be filed pursuant to
section 208 of the Act by an alien
present or arriving in the CNMI prior

to January 1, 2015; however, aliens
physically present in the CNMI during
the transition period who express a
fear of persecution or torture only may
establish eligibility for withholding of
removal pursuant to INA 241(b)(3) or
pursuant to the regulations implementing Article 3 of the United Nations Convention Against Torture and
Other Cruel, Inhuman or Degrading
Treatment or Punishment.
(B) The removal of an alien under
this section may be deferred if the
alien is paroled into the custody of a
Federal, State, or local law enforcement agency for criminal prosecution
or punishment. This section in no way
diminishes the discretionary authority
of the Secretary enumerated in section
212(d) of the Act.
(C) Refusal of admission under this
paragraph shall not constitute removal
for purposes of the Act.
(ii) Determination of deportability. (A)
An alien who has been admitted to either Guam or the CNMI under the provisions of this section who is determined by an immigration officer to be
deportable from either Guam or the
CNMI under one or more of the grounds
of deportability listed in section 237 of
the Act, shall be removed from either
Guam or the CNMI to his or her country of nationality or last residence.
Such removal will be determined by
DHS authority that has jurisdiction
over the place where the alien is found,
and will be effected without referral of
the alien to an immigration judge for a
determination of deportability, except
that an alien admitted to Guam under
the Guam-CNMI Visa Waiver Program
who applies for asylum or other form of
protection from persecution or torture
must be issued a Form I–863 for a proceeding in accordance with 8 CFR
208.2(c)(1) and (2). The provisions of 8
CFR part 208 subpart A shall not apply
to an alien present or arriving in the
CNMI seeking to apply for asylum
prior to January 1, 2015. No application
for asylum may be filed pursuant to
section 208 of the INA by an alien
present or arriving in the CNMI prior
to January 1, 2015; however, aliens
physically present or arriving in the
CNMI prior to January 1, 2015, may
apply for withholding of removal under

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§ 212.2

8 CFR Ch. I (1–1–11 Edition)

section 241(b)(3) of the Act and withholding and deferral of removal under
the regulations implementing Article 3
of the United Nations Convention
Against Torture, Inhuman or Degrading Treatment or Punishment.
(B) Removal by DHS under paragraph
(b)(1) of this section is equivalent in all
respects and has the same consequences as removal after proceedings
conducted under section 240 of the Act.
(iii) Removal of inadmissible aliens who
arrived by air or sea. Removal of an
alien from Guam or the CNMI under
this section may be effected using the
return portion of the round trip passage presented by the alien at the time
of entry to Guam and the CNMI. Such
removal shall be on the first available
means of transportation to the alien’s
point of embarkation to Guam or the
CNMI. Nothing in this part absolves
the carrier of the responsibility to remove any inadmissible or deportable
alien at carrier expense, as provided in
the carrier agreement.
[26 FR 12066, Dec. 16, 1961]

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EDITORIAL NOTE: For FEDERAL REGISTER citations affecting § 212.1, see the List of CFR
Sections Affected, which appears in the
Finding Aids section of the printed volume
and at www.fdsys.gov.

§ 212.2 Consent to reapply for admission after deportation, removal or
departure at Government expense.
(a) Evidence. Any alien who has been
deported or removed from the United
States is inadmissible to the United
States unless the alien has remained
outside of the United States for five
consecutive years since the date of deportation or removal. If the alien has
been convicted of an aggravated felony,
he or she must remain outside of the
United States for twenty consecutive
years from the deportation date before
he or she is eligible to re-enter the
United States. Any alien who has been
deported or removed from the United
States and is applying for a visa, admission to the United States, or adjustment of status, must present proof
that he or she has remained outside of
the United States for the time period
required for re-entry after deportation
or removal. The examining consular or
immigration officer must be satisfied
that since the alien’s deportation or re-

moval, the alien has remained outside
the United States for more than five
consecutive years, or twenty consecutive years in the case of an alien convicted of an aggravated felony as defined in section 101(a)(43) of the Act.
Any alien who does not satisfactorily
present proof of absence from the
United States for more than five consecutive years, or twenty consecutive
years in the case of an alien convicted
of an aggravated felony, to the consular or immigration officer, and any
alien who is seeking to enter the
United States prior to the completion
of the requisite five- or twenty-year absence, must apply for permission to reapply for admission to the United
States as provided under this part. A
temporary stay in the United States
under section 212(d)(3) of the Act does
not interrupt the five or twenty consecutive year absence requirement.
(b) Alien applying to consular officer
for nonimmigrant visa or nonresident
alien border crossing card. (1) An alien
who is applying to a consular officer
for a nonimmigrant visa or a nonresident alien border crossing card,
must request permission to reapply for
admission to the United States if five
years, or twenty years if the alien’s deportation was based upon a conviction
for an aggravated felony, have not
elapsed since the date of deportation or
removal. This permission shall be requested in the manner prescribed
through the consular officer, and may
be granted only in accordance with sections 212(a)(17) and 212(d)(3)(A) of the
Act and § 212.4 of this part. However,
the alien may apply for such permission by submitting Form I–212, Application for Permission to Reapply for
Admission into the United States after
Deportation or Removal, to the consular officer if that officer is willing to
accept the application, and recommends to the district director that
the alien be permitted to apply.
(2) The consular officer shall forward
the Form I–212 to the district director
with jurisdiction over the place where
the deportation or removal proceedings
were held.
(c) Special provisions for an applicant
for nonimmigrant visa under section
101(a)(15)(K) of the Act. (1) An applicant

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