April 1, 2009 CODE OF FEDERAL REGULATIONS 22 Parts 1 to 299 Revised as of April 1, 2009 Foreign Relations Containing a codification of documents of general applicability and future effect As of April 1, 2009 With Ancillaries

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 Table of Contents Page Explanation v Title 22: Chapter I—Department of State 3 Chapter II—Agency for International Development 791 Finding Aids: Table of CFR Titles and Chapters 1109 Alphabetical List of Agencies Appearing in the CFR 1129 List of CFR Sections Affected 1139

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To cite the regulations in this volume use title, part and section number. Thus, 22 CFR 1.1 refers to title 22, part 1, section 1. Explanation

The Code of Federal Regulations is a codification of the general and permanent rules published in the Federal Register by the Executive departments and agencies of the Federal Government. The Code is divided into 50 titles which represent broad areas subject to Federal regulation. Each title is divided into chapters which usually bear the name of the issuing agency. Each chapter is further subdivided into parts covering specific regulatory areas.

Each volume of the Code is revised at least once each calendar year and issued on a quarterly basis approximately as follows:

Title 1 through Title 16

as of January 1

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as of April 1

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as of July 1

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as of October 1

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A subject index to the Code of Federal Regulations is contained in a separate volume, revised annually as of January 1, entitled CFR Index and Finding Aids. This volume contains the Parallel Table of Statutory Authorities and Agency Rules (Table I). A list of CFR titles, chapters, and parts and an alphabetical list of agencies publishing in the CFR are also included in this volume.

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Office of the Federal Register.

April 1, 2009.

THIS TITLE

Title 22—Foreign Relations is composed of two volumes. The first volume, Parts 1 to 299 contains Chapter I—Department of State regulations and Chapter II—Agency for International Development regulations. The second volume, Part 300 to End is composed of Chapter III—Peace Corps; Chapter IV—International Joint Commission, United States and Canada; Chapter V—Broadcasting Board of Governors; Chapter VII—Overseas Private Investment Corporation; Chapter IX—Foreign Service Grievance Board; Chapter X—Inter-American Foundation; Chapter XI—International Boundary and Water Commission, United States and Mexico, United States Section; Chapter XII—United States International Development Cooperation Agency; Chapter XIII—Millennium Challenge Board; Chapter XIV—Foreign Service Labor Relations Board; Federal Labor Relations Authority; General Counsel of the Federal Labor Relations Authority; and the Foreign Service Impasse Disputes Panel; Chapter XV—African Development Foundation; Chapter XVI—Japan-United States Friendship Commission; and Chapter XVII—United States Institute of Peace. The contents of these volumes represent all current regulations codified under this title of the CFR as of April 1, 2009.

For this volume, Cheryl E. Sirofchuck was Chief Editor. The Code of Federal Regulations publication program is under the direction of Michael L. White, assisted by Ann Worley.

 <LRH>22 CFR Ch. I (4-1-09 Edition)</LRH> <RRH>Department of State</RRH> <CFRTITLE> <TITLEHD> <PRTPAGE P="1"/> <HD SOURCE="HED">Title 22—Foreign Relations</HD> <P>(This book contains parts 1 to 299)</P> </TITLEHD> <CFRTOC> <PTHD>Part</PTHD> <CHAPTI> <SUBJECT> <E T="04">chapter i</E>—Department of State</SUBJECT> <PG>1</PG> <SUBJECT> <E T="04">chapter ii</E>—Agency for International Development</SUBJECT> <PG>200</PG> </CHAPTI> </CFRTOC> </CFRTITLE> <CHAPTER> <TOC> <TOCHD> <PRTPAGE P="3"/> <HD SOURCE="HED">CHAPTER I—DEPARTMENT OF STATE</HD> </TOCHD> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER A—GENERAL</HD> </SUBCHAP> <PTHD>Part</PTHD> <PGHD>Page</PGHD> <CHAPTI> <PT>1</PT> <SUBJECT>Insignia of rank</SUBJECT> <PG>9</PG> <PT>2</PT> <SUBJECT>Protection of foreign dignitaries and other official personnel</SUBJECT> <PG>9</PG> <PT>3</PT> <SUBJECT>Gifts and decorations from foreign governments</SUBJECT> <PG>11</PG> <PT>3a</PT> <SUBJECT>Acceptance of employment from foreign governments by members of the uniformed services</SUBJECT> <PG>17</PG> <PT>4</PT> <SUBJECT>Notification of foreign official status</SUBJECT> <PG>19</PG> <PT>5</PT> <SUBJECT>Organization</SUBJECT> <PG>20</PG> <PT>7</PT> <RESERVED>[Reserved]</RESERVED> <PT>8</PT> <SUBJECT>Advisory committee management</SUBJECT> <PG>22</PG> <PT>9</PT> <SUBJECT>Security information regulations</SUBJECT> <PG>27</PG> <PT>9a</PT> <SUBJECT>Security information regulations applicable to certain international energy programs; related material</SUBJECT> <PG>31</PG> <PT>9b</PT> <SUBJECT>Regulations governing Department of State press building passes</SUBJECT> <PG>33</PG> </CHAPTI> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER B—PERSONNEL</HD> </SUBCHAP> <CHAPTI> <PT>11</PT> <SUBJECT>Appointment of Foreign Service officers</SUBJECT> <PG>37</PG> <PT>12</PT> <SUBJECT>Complaints against employees by alleged creditors</SUBJECT> <PG>55</PG> <PT>13</PT> <SUBJECT>Personnel</SUBJECT> <PG>55</PG> <PT>16</PT> <SUBJECT>Foreign Service grievance system</SUBJECT> <PG>56</PG> <PT>17</PT> <SUBJECT>Overpayments from the Foreign Service Retirement and Disability Fund under the Foreign Service Retirement and Disability System (FSRDS) and the Foreign Service Pension System</SUBJECT> <PG>64</PG> <PT>18</PT> <SUBJECT>Regulations concerning post employment conflict of interest</SUBJECT> <PG>67</PG> <PT>19</PT> <SUBJECT>Benefits for spouses and former spouses of participants in the Foreign Service retirement and disability system</SUBJECT> <PG>71</PG> <PT>20</PT> <SUBJECT>Benefits for certain former spouses</SUBJECT> <PG>92<PRTPAGE P="4"/> </PG> <PT>21</PT> <SUBJECT>Indemnification of employees</SUBJECT> <PG>95</PG> </CHAPTI> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER C—FEES AND FUNDS</HD> </SUBCHAP> <CHAPTI> <PT>22</PT> <SUBJECT>Schedule of fees for consular services—Department of State and Foreign Service</SUBJECT> <PG>97</PG> <PT>23</PT> <SUBJECT>Finance and accounting</SUBJECT> <PG>102</PG> </CHAPTI> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER D—CLAIMS AND STOLEN PROPERTY</HD> </SUBCHAP> <CHAPTI> <PT>33</PT> <SUBJECT>Fishermen's Protective Act Guaranty Fund procedures under section 7</SUBJECT> <PG>104</PG> <PT>34</PT> <SUBJECT>Debt collection</SUBJECT> <PG>108</PG> <PT>35</PT> <SUBJECT>Program fraud civil remedies</SUBJECT> <PG>119</PG> </CHAPTI> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER E—VISAS</HD> </SUBCHAP> <CHAPTI> <PT>40</PT> <SUBJECT>Regulations pertaining to both nonimmigrants and immigrants under the Immigration and Nationality Act, as amended</SUBJECT> <PG>135</PG> <PT>41</PT> <SUBJECT>Visas: Documentation of nonimmigrants under the Immigration and Nationality Act, as amended</SUBJECT> <PG>148</PG> <PT>42</PT> <SUBJECT>Visas: Documentation of immigrants under the Immigration and Nationality Act, as amended</SUBJECT> <PG>195</PG> <PT>43-45</PT> <RESERVED>[Reserved]</RESERVED> <PT>46</PT> <SUBJECT>Control of aliens departing from the United States</SUBJECT> <PG>221</PG> <PT>47</PT> <RESERVED>[Reserved]</RESERVED> </CHAPTI> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER F—NATIONALITY AND PASSPORTS</HD> </SUBCHAP> <CHAPTI> <PT>50</PT> <SUBJECT>Nationality procedures</SUBJECT> <PG>228</PG> <PT>51</PT> <SUBJECT>Passports</SUBJECT> <PG>233</PG> <PT>52</PT> <SUBJECT>Marriages</SUBJECT> <PG>248</PG> <PT>53</PT> <SUBJECT>Passport requirement and exceptions</SUBJECT> <PG>248</PG> </CHAPTI> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER G—PUBLIC DIPLOMACY AND EXCHANGES</HD> </SUBCHAP> <CHAPTI> <PT>61</PT> <SUBJECT>World-wide free flow of audio-visual materials</SUBJECT> <PG>251</PG> <PT>62</PT> <SUBJECT>Exchange visitor program</SUBJECT> <PG>254</PG> <PT>63</PT> <SUBJECT>Payments to and on behalf of participants in the international educational and cultural exchange program</SUBJECT> <PG>310</PG> <PT>64</PT> <SUBJECT>Participation by Federal employees in cultural exchange programs of foreign countries</SUBJECT> <PG>315</PG> <PT>65</PT> <SUBJECT>Foreign students</SUBJECT> <PG>317</PG> <PT>66</PT> <SUBJECT>Availability of the records of the National Endowment for Democracy</SUBJECT> <PG>318<PRTPAGE P="5"/> </PG> <PT>67</PT> <SUBJECT>Organization of the National Endowment for Democracy</SUBJECT> <PG>326</PG> </CHAPTI> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER H—PROTECTION AND WELFARE OF AMERICANS, THEIR PROPERTY AND ESTATES</HD> </SUBCHAP> <CHAPTI> <PT>71</PT> <SUBJECT>Protection and welfare of citizens and their property</SUBJECT> <PG>331</PG> <PT>72</PT> <SUBJECT>Deaths and estates</SUBJECT> <PG>334</PG> </CHAPTI> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER I—SHIPPING AND SEAMEN</HD> </SUBCHAP> <CHAPTI> <PT>89</PT> <SUBJECT>Prohibitions on longshore work by U.S. nationals</SUBJECT> <PG>343</PG> </CHAPTI> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER J—LEGAL AND RELATED SERVICES</HD> </SUBCHAP> <CHAPTI> <PT>91</PT> <SUBJECT>Import controls</SUBJECT> <PG>352</PG> <PT>92</PT> <SUBJECT>Notarial and related services</SUBJECT> <PG>352</PG> <PT>93</PT> <SUBJECT>Service on foreign state</SUBJECT> <PG>381</PG> <PT>94</PT> <SUBJECT>International child abduction</SUBJECT> <PG>382</PG> <PT>95</PT> <SUBJECT>Implementation of torture convention in extradition cases</SUBJECT> <PG>385</PG> <PT>96</PT> <SUBJECT>Accreditation of agencies and approval of persons under the Intercountry Adoption Act of 2000 (IAA)</SUBJECT> <PG>386</PG> <PT>97</PT> <SUBJECT>Issuance of adoption certificates and custody delarations in Hague Convention adoption cases</SUBJECT> <PG>440</PG> <PT>98</PT> <SUBJECT>Intercountry adoption—Convention record preservation</SUBJECT> <PG>443</PG> <PT>99</PT> <SUBJECT>Reporting on Convention and non-Convention adoptions of emigrating children</SUBJECT> <PG>444</PG> </CHAPTI> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER K—ECONOMIC AND OTHER FUNCTIONS</HD> </SUBCHAP> <CHAPTI> <PT>101</PT> <SUBJECT>Economic and commercial functions</SUBJECT> <PG>446</PG> <PT>102</PT> <SUBJECT>Civil aviation</SUBJECT> <PG>447</PG> <PT>103</PT> <SUBJECT>Regulations for implementation of the Chemical Weapons Convention and the Chemical Weapons Convention Implementation Act of 1998 on the taking of samples and on enforcement of requirements concerning recordkeeping and inspections</SUBJECT> <PG>452</PG> <PT>104</PT> <SUBJECT>International trafficking in persons: Interagency coordination of activities and sharing of information</SUBJECT> <PG>459</PG> </CHAPTI> <SUBCHAP> <RESERVED>SUBCHAPTER L [RESERVED]</RESERVED> </SUBCHAP> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER M—INTERNATIONAL TRAFFIC IN ARMS REGULATIONS</HD> </SUBCHAP> <CHAPTI> <PT>120</PT> <SUBJECT>Purpose and definitions</SUBJECT> <PG>461</PG> <PT>121</PT> <SUBJECT>The United States munitions list</SUBJECT> <PG>469</PG> <PT>122</PT> <SUBJECT>Registration of manufacturers and exporters</SUBJECT> <PG>493<PRTPAGE P="6"/> </PG> <PT>123</PT> <SUBJECT>Licenses for the export of defense articles</SUBJECT> <PG>496</PG> <PT>124</PT> <SUBJECT>Agreements, off-shore procurement and other defense services</SUBJECT> <PG>512</PG> <PT>125</PT> <SUBJECT>Licenses for the export of technical data and classified defense articles</SUBJECT> <PG>524</PG> <PT>126</PT> <SUBJECT>General policies and provisions</SUBJECT> <PG>529</PG> <PT>127</PT> <SUBJECT>Violations and penalties</SUBJECT> <PG>546</PG> <PT>128</PT> <SUBJECT>Administrative procedures</SUBJECT> <PG>553</PG> <PT>129</PT> <SUBJECT>Registration and licensing of brokers</SUBJECT> <PG>560</PG> <PT>130</PT> <SUBJECT>Political contributions, fees and commissions</SUBJECT> <PG>563</PG> </CHAPTI> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER N—MISCELLANEOUS</HD> </SUBCHAP> <CHAPTI> <PT>131</PT> <SUBJECT>Certificates of authentication</SUBJECT> <PG>570</PG> <PT>132</PT> <SUBJECT>Books, maps, newspapers, etc.</SUBJECT> <PG>570</PG> <PT>133</PT> <SUBJECT>Governmentwide requirements for drug-free workplace (financial assistance)</SUBJECT> <PG>570</PG> <PT>134</PT> <SUBJECT>Equal Access to Justice Act; implementation</SUBJECT> <PG>576</PG> <PT>135</PT> <SUBJECT>Uniform administrative requirements for grants and cooperative agreements to state and local governments</SUBJECT> <PG>582</PG> <PT>136</PT> <SUBJECT>Personal property disposition at posts abroad</SUBJECT> <PG>609</PG> <PT>138</PT> <SUBJECT>New restrictions on lobbying</SUBJECT> <PG>612</PG> <PT>139</PT> <SUBJECT>Irish peace process cultural and training program</SUBJECT> <PG>624</PG> <PT>140</PT> <SUBJECT>Prohibition on assistance to drug traffickers</SUBJECT> <PG>628</PG> </CHAPTI> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER O—CIVIL RIGHTS</HD> </SUBCHAP> <CHAPTI> <PT>141</PT> <SUBJECT>Nondiscrimination in federally-assisted programs of the Department of State—effectuation of title VI of the Civil Rights Act of 1964</SUBJECT> <PG>635</PG> <PT>142</PT> <SUBJECT>Nondiscrimination on the basis of handicap in programs or activities receiving Federal financial assistance</SUBJECT> <PG>644</PG> <PT>143</PT> <SUBJECT>Nondiscrimination on the basis of age in programs or activities receiving Federal financial assistance</SUBJECT> <PG>657</PG> <PT>144</PT> <SUBJECT>Enforcement of non-discrimination on the basis of handicap in programs or activities conducted by the United States Department of State</SUBJECT> <PG>662</PG> <PT>145</PT> <SUBJECT>Grants and agreements with institutions of higher education, hospitals, and other non-profit organizations</SUBJECT> <PG>668<PRTPAGE P="7"/> </PG> <PT>146</PT> <SUBJECT>Nondiscrimination on the basis of sex in education programs or activities receiving Federal financial assistance</SUBJECT> <PG>696</PG> </CHAPTI> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER P—DIPLOMATIC PRIVILEGES AND IMMUNITIES</HD> </SUBCHAP> <CHAPTI> <PT>151</PT> <SUBJECT>Compulsory liability insurance for diplomatic missions and personnel</SUBJECT> <PG>713</PG> </CHAPTI> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER Q—ENVIRONMENTAL PROTECTION</HD> </SUBCHAP> <CHAPTI> <PT>161</PT> <SUBJECT>Regulations for implementation of the National Environmental Policy Act (NEPA)</SUBJECT> <PG>716</PG> </CHAPTI> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER R—ACCESS TO INFORMATION</HD> </SUBCHAP> <CHAPTI> <PT>171</PT> <SUBJECT>Availability of information and records to the public</SUBJECT> <PG>729</PG> <PT>172</PT> <SUBJECT>Service of process; production or disclosure of official information in response to court orders, subpoenas, notices of depositions, requests for admissions, interrogatories, or similar requests or demands in connection with Federal or State litigation; expert testimony</SUBJECT> <PG>748</PG> </CHAPTI> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER S—INTERNATIONAL AGREEMENTS</HD> </SUBCHAP> <CHAPTI> <PT>181</PT> <SUBJECT>Coordination, reporting and publication of international agreements</SUBJECT> <PG>754</PG> </CHAPTI> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER T—HOSTAGE RELIEF</HD> </SUBCHAP> <CHAPTI> <PT>191</PT> <SUBJECT>Hostage relief assistance</SUBJECT> <PG>762</PG> <PT>192</PT> <SUBJECT>Victims of terrorism compensation</SUBJECT> <PG>769</PG> <PT>193</PT> <SUBJECT>Benefits for hostages in Iraq, Kuwait, or Lebanon</SUBJECT> <PG>780</PG> </CHAPTI> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER U—INTERNATIONAL COMMERCIAL ARBITRATION</HD> </SUBCHAP> <CHAPTI> <PT>194</PT> <SUBJECT>Inter-American Commercial Arbitration Commission rules of procedure</SUBJECT> <PG>782</PG> <PT>196</PT> <SUBJECT>Thomas R. Pickering Foreign Affairs/Graduate Foreign Affairs Fellowship Program</SUBJECT> <PG>789</PG> </CHAPTI> </TOC> <SUBCHAP TYPE="N"> <PRTPAGE P="9"/> <HD SOURCE="HED">SUBCHAPTER A—GENERAL</HD> <PART> <EAR>Pt. 1</EAR> <HD SOURCE="HED">PART 1—INSIGNIA OF RANK</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>1.1</SECTNO> <SUBJECT>Office of the Secretary of State.</SUBJECT> <SECTNO>1.2</SECTNO> <SUBJECT>Office of the Deputy Secretary of State.</SUBJECT> <SECTNO>1.3</SECTNO> <SUBJECT>Office of the Under Secretaries of State.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>Sec. 4, 63 Stat. 111, as amended; 22 U.S.C. 2658.</P> </AUTH> <SECTION> <SECTNO>§ 1.1</SECTNO> <SUBJECT>Office of the Secretary of State.</SUBJECT> <P>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.</P> <CITA>[22 FR 10788, Dec. 27, 1957]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.2</SECTNO> <SUBJECT>Office of the Deputy Secretary of State.</SUBJECT> <P>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.</P> <CITA>[38 FR 30258, Nov. 2, 1973]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.3</SECTNO> <SUBJECT>Office of the Under Secretaries of State.</SUBJECT> <P>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.</P> <CITA>[38 FR 30258, Nov. 2, 1973]</CITA> </SECTION> </PART> <PART> <EAR>Pt. 2</EAR> <HD SOURCE="HED">PART 2—PROTECTION OF FOREIGN DIGNITARIES AND OTHER OFFICIAL PERSONNEL</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>2.1</SECTNO> <SUBJECT>Designation of personnel to carry firearms and exercise appropriate power of arrest.</SUBJECT> <SECTNO>2.2</SECTNO> <SUBJECT>Purpose.</SUBJECT> <SECTNO>2.3</SECTNO> <SUBJECT>Notification of foreign officials.</SUBJECT> <SECTNO>2.4</SECTNO> <SUBJECT>Designation of official guests.</SUBJECT> <SECTNO>2.5</SECTNO> <SUBJECT>Records.</SUBJECT> </CONTENTS> <SECTION> <SECTNO>§ 2.1</SECTNO> <SUBJECT>Designation of personnel to carry firearms and exercise appropriate power of arrest.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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 <PRTPAGE P="10"/>committed or is committing such felony.</P> <P>(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.</P> <P>(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.</P> <SECAUTH>(Sec. 4, 63 Stat. 111, as amended, sec. 1, 69 Stat. 188; 22 U.S.C. 2658, 2666)</SECAUTH> <CITA>[29 FR 15571, Nov. 20, 1964, as amended at 47 FR 30480, July 14, 1982; 50 FR 14379, Apr. 12, 1985]</CITA> </SECTION> <SECTION> <SECTNO>§ 2.2</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>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.</P> <SECAUTH>(18 U.S.C. 1116(b)(2), 1116(c)(4); sec. 4 of the Act of May 26, 1949, as amended (22 U.S.C. 2658))</SECAUTH> <CITA>[37 FR 24817, Nov. 22, 1972]</CITA> </SECTION> <SECTION> <SECTNO>§ 2.3</SECTNO> <SUBJECT>Notification of foreign officials.</SUBJECT> <P>(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.<PRTPAGE P="11"/> </P> <P>(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.</P> <SECAUTH>(18 U.S.C. 1116(b)(2), 1116(c)(4); sec. 4 of the Act of May 26, 1949, as amended (22 U.S.C. 2658))</SECAUTH> <CITA>[37 FR 24818, Nov. 22, 1972]</CITA> </SECTION> <SECTION> <SECTNO>§ 2.4</SECTNO> <SUBJECT>Designation of official guests.</SUBJECT> <P>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.</P> <SECAUTH>(22 U.S.C. 2658)</SECAUTH> <CITA>[45 FR 55716, Aug. 21, 1980]</CITA> </SECTION> <SECTION> <SECTNO>§ 2.5</SECTNO> <SUBJECT>Records.</SUBJECT> <P>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.</P> <SECAUTH>(18 U.S.C. 1116(b)(2), 1116(c)(4); sec. 4 of the Act of May 26, 1949, as amended (22 U.S.C. 2658))</SECAUTH> <CITA>[37 FR 24818, Nov. 22, 1972]</CITA> </SECTION> </PART> <PART> <EAR>Pt. 3</EAR> <HD SOURCE="HED">PART 3—GIFTS AND DECORATIONS FROM FOREIGN GOVERNMENTS</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>3.1</SECTNO> <SUBJECT>Purpose.</SUBJECT> <SECTNO>3.2</SECTNO> <SUBJECT>Authority.</SUBJECT> <SECTNO>3.3</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>3.4</SECTNO> <SUBJECT>Restriction on acceptance of gifts and decorations.</SUBJECT> <SECTNO>3.5</SECTNO> <SUBJECT>Designation of officials and offices responsible for administration of foreign gifts and decorations.</SUBJECT> <SECTNO>3.6</SECTNO> <SUBJECT>Procedure to be followed by employees in depositing gifts of more than minimal value and reporting acceptance of travel or travel expenses.</SUBJECT> <SECTNO>3.7</SECTNO> <SUBJECT>Decorations.</SUBJECT> <SECTNO>3.8</SECTNO> <SUBJECT>Approval of retention of gifts or decorations with employing agency for official use.</SUBJECT> <SECTNO>3.9</SECTNO> <SUBJECT>Disposal of gifts and decorations which become the property of the United States.</SUBJECT> <SECTNO>3.10</SECTNO> <SUBJECT>Enforcement.</SUBJECT> <SECTNO>3.11</SECTNO> <SUBJECT>Responsibility of chief of mission to inform host government of restrictions on employees' receipt of gifts and decorations.</SUBJECT> <SECTNO>3.12</SECTNO> <SUBJECT>Exemption of grants and other foreign government assistance in cultural exchange programs from coverage of foreign gifts and decorations legislation.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>Sec. 515(a)(1), 91 Stat. 862, amending 5 U.S.C. 7342 (1976).</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>45 FR 80819, Dec. 8, 1980, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 3.1</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 3.2</SECTNO> <SUBJECT>Authority.</SUBJECT> <P>(a) Section 515(a)(1) of the Foreign Relations Authorization Act of 1978 (91 Stat. 862-866), approved August 17, 1977, <PRTPAGE P="12"/>(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.</P> <P>(b) 5 U.S.C. 7342(g) authorizes each employing agency to prescribe regulations as necessary to carry out the new law.</P> </SECTION> <SECTION> <SECTNO>§ 3.3</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>When used in this part, the following terms have the meanings indicated:</P> <P>(a) <E T="03">Employee</E> 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).</P> <P>(b) <E T="03">Foreign government</E> 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;</P> <P>(c) <E T="03">Gift</E> means a tangible or intangible present (other than a decoration) tendered by, or received from, a foreign government;</P> <P>(d) <E T="03">Decoration</E> means an order, device, medal, badge, insignia, emblem or award tendered by, or received from, a foreign government;</P> <P>(e) <E T="03">Minimal value</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 3.4</SECTNO> <SUBJECT>Restriction on acceptance of gifts and decorations.</SUBJECT> <P>(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.</P> <P>(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—</P> <P>(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”.</P> <P>(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.</P> <P>(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.</P> <P>(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 <PRTPAGE P="13"/>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.</P> <P>(1) There are two circumstances under which employees may accept gifts of travel or expenses:</P> <P>(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</P> <P>(ii) When the employee's travel orders specifically anticipate the acceptance of additional travel and travel expenses incident to the authorized travel.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 3.5</SECTNO> <SUBJECT>Designation of officials and offices responsible for administration of foreign gifts and decorations.</SUBJECT> <P>(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.</P> <P>(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 <PRTPAGE P="14"/>foreign affairs agencies must deposit with their respective agencies any gifts or decorations deposit of which is required by law.</P> <P>(c) Any questions concerning the implementation of these regulations or interpretation of the law should be directed to the following:</P> <P>(1) For the Department of State, to the Office of Protocol or to the Office of the Assistant Legal Adviser for Management, as appropriate;</P> <P>(2) For IDCA, to the Office of the General Counsel;</P> <P>(3) For AID, to the Assistant General Counsel for Employee and Public Affairs; and</P> <P>(4) For USICA, to the General Counsel.</P> </SECTION> <SECTION> <SECTNO>§ 3.6</SECTNO> <SUBJECT>Procedure to be followed by employees in depositing gifts of more than minimal value and reporting acceptance of travel or travel expenses.</SUBJECT> <P>(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:</P> <P>(1) For the Department of State, the Office of Protocol;</P> <P>(2) For IDCA, the General Services Division of the Office of Management Planning in AID;</P> <P>(3) For AID, the General Services Division of the Office of Management Planning; and</P> <P>(4) For USICA, the Office of Personnel Services.</P> <P>(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:</P> <P>(1) For each tangible gift reported:</P> <P>(i) The name and position of the employee;</P> <P>(ii) A brief description of the gift and the circumstances justifying acceptance;</P> <P>(iii) The identity of the foreign government and the name and position of the individual who presented the gift;</P> <P>(iv) The date of acceptance of the gift;</P> <P>(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</P> <P>(vi) Disposition or current location of the gift. (For State Department employees, forms for this purpose are available in the Office of Protocol.)</P> <P>(2) For each gift of travel or travel expenses:</P> <P>(i) The name and position of the employee;</P> <P>(ii) A brief description of the gift and the circumstances justifying acceptance; and</P> <P>(iii) The identity of the foregign government and the name and position of the individual who presented the gift.</P> <P>(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 <E T="04">Federal Register</E> a comprehensive listing of all such statements filed by Federal employees concerning gifts of more than minimal value received by them during the preceding year.</P> </SECTION> <SECTION> <SECTNO>§ 3.7</SECTNO> <SUBJECT>Decorations.</SUBJECT> <P>(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.<PRTPAGE P="15"/> </P> <P>(b) The decision as to whether a decoration has been awarded for outstanding or unusually meritorious performance will be made:</P> <P>(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;</P> <P>(2) For IDCA, by the Assistant Director for Administration;</P> <P>(3) For AID, by the Director of Personnel Management; and</P> <P>(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).</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 3.8</SECTNO> <SUBJECT>Approval of retention of gifts or decorations with employing agency for official use.</SUBJECT> <P>(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:</P> <P>(1) For the Department of State, by the Chief of Protocol;</P> <P>(2) For IDCA, by AID's Director of Management Operations;</P> <P>(3) For AID, by the Director of Management Operations; and</P> <P>(4) For USICA, by the Associate Director for Management.</P> <FP>However, to qualify for such approval, the gift or decoration should be an item which can be used in the normal conduct of agency business, such as a rug or a tea service, or an art object meriting display, such as a painting or sculpture. Personal gift items, such as wristwatches, jewelry, or wearing apparel, should not be regarded as suitable for “official use”. Only under unusual circumstances will retention of a decoration for official use be authorized. Every effort should be made to place each “official use” item in a location that will afford the largest number of employees, and, if feasible, members of the public, the maximum opportunity to receive the benefit of its display, provided the security of the location is adequate.</FP> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 3.9</SECTNO> <SUBJECT>Disposal of gifts and decorations which become the property of the United States.</SUBJECT> <P>(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 <PRTPAGE P="16"/>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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 3.10</SECTNO> <SUBJECT>Enforcement.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(c) Employees are advised of the following actions which may result from failure to comply with the requirements of the Act and these regulations:</P> <P>(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.</P> <P>(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.</P> <P>(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 <PRTPAGE P="17"/>paragraph (c)(2) of this section in order to deter future violations by the same or another employee.</P> </SECTION> <SECTION> <SECTNO>§ 3.11</SECTNO> <SUBJECT>Responsibility of chief of mission to inform host government of restrictions on employees' receipt of gifts and decorations.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 3.12</SECTNO> <SUBJECT>Exemption of grants and other foreign government assistance in cultural exchange programs from coverage of foreign gifts and decorations legislation.</SUBJECT> <P>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.</P> </SECTION> </PART> <PART> <EAR>Pt. 3a</EAR> <HD SOURCE="HED">PART 3a—ACCEPTANCE OF EMPLOYMENT FROM FOREIGN GOVERNMENTS BY MEMBERS OF THE UNIFORMED SERVICES</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>3a.1</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>3a.2</SECTNO> <SUBJECT>Requirement for approval of foreign government employment.</SUBJECT> <SECTNO>3a.3</SECTNO> <SUBJECT>Authority to approve or disapprove proposed foreign government employment.</SUBJECT> <SECTNO>3a.4</SECTNO> <SUBJECT>Procedure for requesting approval.</SUBJECT> <SECTNO>3a.5</SECTNO> <SUBJECT>Basis for approval or disapproval.</SUBJECT> <SECTNO>3a.6</SECTNO> <SUBJECT>Notification of approval.</SUBJECT> <SECTNO>3a.7</SECTNO> <SUBJECT>Notification of disapproval and reconsideration.</SUBJECT> <SECTNO>3a.8</SECTNO> <SUBJECT>Change in status.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>Sec. 509, 91 Stat. 859 (37 U.S.C. 801 Note); sec. 4, as amended, 63 Stat. 111 (22 U.S.C. 2658).</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>43 FR 55393, Nov. 28, 1978, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 3a.1</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>For purposes of this part—</P> <P>(a) <E T="03">Applicant</E> 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;</P> <P>(2) Any member of a Reserve component of the Armed Forces; or</P> <P>(3) Any member of the commissioned Reserve Corps of the Public Health Service.</P> <FP>The term “applicant” also includes persons described in paragraph (a)(1), (2), or (3) of this section, who have already accepted foreign government employment and are requesting approval under this part to continue such employment.</FP> <P>(b) <E T="03">Uniformed services</E> 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.</P> <P>(c) <E T="03">Armed Forces</E> means the Army, Navy, Air Force, Marine Corps, and Coast Guard.</P> <P>(d) <E T="03">Secretary concerned</E> means: (1) The Secretary of the Army, with respect to retired members of the Army and members of the Army Reserve;</P> <P>(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;</P> <P>(3) The Secretary of the Air Force, with respect to retired members of the Air Force and members of the Air Force Reserve;</P> <P>(4) The Secretary of Transportation, with respect to retired members of the Coast Guard and members of the Coast <PRTPAGE P="18"/>Guard Reserve when the Coast Guard is not operating as a service in the Navy;</P> <P>(5) The Secretary of Commerce, with respect to retired members of the commissioned corps of the National Oceanic and Atmospheric Administration; and</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 3a.2</SECTNO> <SUBJECT>Requirement for approval of foreign government employment.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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. <SU>1</SU> <FTREF/> </P> <FTNT> <P> <SU>1</SU> Approval under this part does not constitute an exception to the provisions of the Immigration and Nationality Act concerning loss of United States citizenship, for example, by becoming a citizen of or taking an oath of allegiance to another country. See 8 U.S.C. 1481 <E T="03">et seq.</E> </P> </FTNT> </SECTION> <SECTION> <SECTNO>§ 3a.3</SECTNO> <SUBJECT>Authority to approve or disapprove proposed foreign government employment.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 3a.4</SECTNO> <SUBJECT>Procedure for requesting approval.</SUBJECT> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 3a.5</SECTNO> <SUBJECT>Basis for approval or disapproval.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <PRTPAGE P="19"/> <SECTNO>§ 3a.6</SECTNO> <SUBJECT>Notification of approval.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 3a.7</SECTNO> <SUBJECT>Notification of disapproval and reconsideration.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 3a.8</SECTNO> <SUBJECT>Change in status.</SUBJECT> <P>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.</P> </SECTION> </PART> <PART> <EAR>Pt. 4</EAR> <HD SOURCE="HED">PART 4—NOTIFICATION OF FOREIGN OFFICIAL STATUS</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>4.1</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>4.2</SECTNO> <SUBJECT>Procedure.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>22 U.S.C. 2651a(a)(4).</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>61 FR 32328, June 24, 1996, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 4.1</SECTNO> <SUBJECT>General.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 4.2</SECTNO> <SUBJECT>Procedure.</SUBJECT> <P>Notification and subsequent changes are made as follows:</P> <P>(a) Diplomatic and career consular officers and their dependents: Form DSP-110, <E T="03">Notification of Appointment of Foreign Diplomatic Officer and Career Consular Officer</E>;</P> <P>(b) All other foreign government employees who are serving at diplomatic missions, consular posts, or miscellaneous foreign government offices and <PRTPAGE P="20"/>their dependents: Form DSP-111, <E T="03">Notification of Appointment of Foreign Government Employee</E>.</P> <P>(c) Honorary consular officers: Form DSP-112, <E T="03">Notification of Appointment of Honorary Consular Officer</E>.</P> <P>(d) Missions should use Form DSP-113, <E T="03">Notification of Change—Identification Card Request,</E> 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.</P> <P>(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, <E T="03">Notice of Termination of Diplomatic, Consular, or Foreign Government Employment,</E> must be submitted to the Office of Protocol.</P> </SECTION> </PART> <PART> <EAR>Pt. 5</EAR> <HD SOURCE="HED">PART 5—ORGANIZATION</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>5.1</SECTNO> <SUBJECT>Introduction.</SUBJECT> <SECTNO>5.2</SECTNO> <SUBJECT>Central and field organization, established places at which, the officers from whom, and the methods whereby the public may secure information, make submittals, or request, or obtain decisions; and statements of the general course and method by which its functions are channeled and determined.</SUBJECT> <SECTNO>5.3</SECTNO> <SUBJECT>Rules of procedure, description of forms available or the places at which forms may be obtained, and instructions as to the scope and content of all papers, reports, or examinations.</SUBJECT> <SECTNO>5.4</SECTNO> <SUBJECT>Substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretation of general applicability formulated and adopted by the agency.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>Sec. 4, 63 Stat. 111, as amended, sec. 501, 65 Stat. 290; 22 U.S.C. 2658, 31 U.S.C. 483a, 5 U.S.C. 552, E.O. 10501; 18 FR 7049; 3 CFR, 1949-1953 Comp., page 979.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>33 FR 7078, May 11, 1968, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 5.1</SECTNO> <SUBJECT>Introduction.</SUBJECT> <P>The sections in this part 5 are issued pursuant to section 3 of the Administrative Procedure Act, 5 U.S.C. 552, effective July 4, 1967.</P> </SECTION> <SECTION> <SECTNO>§ 5.2</SECTNO> <SUBJECT>Central and field organization, established places at which, the officers from whom, and the methods whereby the public may secure information, make submittals, or request, or obtain decisions; and statements of the general course and method by which its functions are channeled and determined.</SUBJECT> <P>(a) The following statements of the central and field organization of the Department of State and its Foreign Service posts are hereby prescribed:</P> <P>(1) The central organization of the Department of State was issued as Public Notice No. 267, 32 FR 8923, June 22, 1967.</P> <P>(2) The foreign field organization of the Department of State was issued as Public Notice No. 254, 32 FR 3712, March 3, 1967.</P> <P>(3) The domestic field organization of the Department of State was issued as Public Notice No. 268, 32 FR 8925, June 22, 1967.</P> <P>(b) As used in the following sections, the term “Department of State” includes all offices within the Department in Washington, its domestic field offices in the United States, all Foreign Service posts throughout the world, and U.S. missions to international organizations unless otherwise specified.</P> <P>(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 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 instructions on the form as to preparation and place of submission should be followed. In such cases, the provisions of this part referring to the particular regulation concerned should be consulted.</P> </SECTION> <SECTION> <PRTPAGE P="21"/> <SECTNO>§ 5.3</SECTNO> <SUBJECT>Rules of procedure, description of forms available or the places at which forms may be obtained, and instructions as to the scope and content of all papers, reports, or examinations.</SUBJECT> <P>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 below:</P> <GPOTABLE CDEF="s80,r70,r140" COLS="3" OPTS="L2"> <BOXHD> <CHED H="1">Subject matter</CHED> <CHED H="1">Office</CHED> <CHED H="1">Address</CHED> </BOXHD> <ROW> <ENT I="01">Appointment of Foreign Service Officers</ENT> <ENT>Board of Examiners for the Foreign Service</ENT> <ENT>Department of State, Room 7314, 1800 N. Kent St., Arlington, Va. 22209.</ENT> </ROW> <ROW> <ENT I="01">Authentication and other services</ENT> <ENT>Document and Reference Division</ENT> <ENT>Department of State, Room 2815, 22d and D Sts. NW., Washington, DC 20520.</ENT> </ROW> <ROW> <ENT I="01">Claims and stolen property</ENT> <ENT>Legal Adviser</ENT> <ENT>Department of State, 2201 C Street NW., Washington, DC 20520.</ENT> </ROW> <ROW> <ENT I="01">International educational and cultural exchange program</ENT> <ENT>Bureau of Educational and Cultural Affairs</ENT> <ENT>Department of State, 2201 C Street NW., Washington, DC 20520.</ENT> </ROW> <ROW> <ENT I="01">International traffic in arms</ENT> <ENT>Office of Munitions Control</ENT> <ENT>Department of State, Room 800, 1700 N. Lynn St., Arlington, Va. 22209.</ENT> </ROW> <ROW> <ENT I="01">Nationality and passports</ENT> <ENT>Passport Office</ENT> <ENT>Department of State, Room 362, 1425 K St., NW., Washington, DC 20524.</ENT> </ROW> <ROW> <ENT I="01">Protection and welfare of U.S. citizens, shipping and seamen, and other consular services abroad</ENT> <ENT>Office of Special Consular Services</ENT> <ENT>Department of State, 2201 C Street NW., Washington, DC 20520.</ENT> </ROW> <ROW> <ENT I="01">Visa issuance</ENT> <ENT>Visa Office</ENT> <ENT>Department of State, Annex 2, 515 22d Street NW., Washington, DC 20520.</ENT> </ROW> </GPOTABLE> </SECTION> <SECTION> <SECTNO>§ 5.4</SECTNO> <SUBJECT>Substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretation of general applicability formulated and adopted by the agency.</SUBJECT> <P>(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 and the F<E T="04">ederal Register.</E> Any person desiring information with respect to a particular procedure should examine the pertinent regulation cited hereafter.</P> <P>(b) The following are citations to regulations within the scope of this section.</P> <P>(1) Acceptance of Gifts and Decorations from Foreign Governments. 22 CFR part 3 <E T="03">et seq.</E> </P> <P>(2) Employee Responsibility and Conduct. 22 CFR part 10 <E T="03">et seq.</E> </P> <P>(3) Appointment of Foreign Service Officers. 22 CFR part 11 <E T="03">et seq.</E> </P> <P>(4) Fees for Services in the United States, fees and Charges, Foreign service. 22 CFR part 21 <E T="03">et seq.</E>; 22 CFR part 22 <E T="03">et seq.</E> </P> <P>(5) Claims and Stolen Property. 22 CFR part 31 <E T="03">et seq.</E> </P> <P>(6) Issuance of Visas. 22 CFR parts 41-42 <E T="03">et seq.</E> </P> <P>(7) Nationality and Passports. 22 CFR part 50 <E T="03">et seq.</E> </P> <P>(8) International Educational and Cultural Exchanges. 22 CFR part 61 <E T="03">et seq.</E> </P> <P>(9) Protection and Welfare of Americans Abroad. 22 CFR part 71 <E T="03">et seq.</E> </P> <P>(10) Shipping and Seamen Abroad. 22 CFR part 81 <E T="03">et seq.</E> </P> <P>(11) Other Consular Services Abroad. 22 CFR part 91 <E T="03">et seq.</E> </P> <P>(12) Economic, Commercial and Civil Air Functions Abroad. 22 CFR part 101 <E T="03">et seq.</E> </P> <P>(13) International Traffic in Arms. 22 CFR part 121 <E T="03">et seq.</E> </P> <P>(14) Certificates of Authentication. 22 CFR part 131 <E T="03">et seq.</E> </P> <P>(15) Civil Rights. 22 CFR part 141 <E T="03">et seq.</E> </P> <P>(16) Department of State Procurement. 41 CFR part 6-1 <E T="03">et seq.</E> </P> <P>(c) These regulations are supplemented from time to time by amendments appearing initially in the <E T="04">Federal Register.</E> </P> </SECTION> </PART> <PART> <RESERVED>PART 7 [RESERVED]</RESERVED> </PART> <PART> <PRTPAGE P="22"/> <EAR>Pt. 8</EAR> <HD SOURCE="HED">PART 8—ADVISORY COMMITTEE MANAGEMENT</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>8.1</SECTNO> <SUBJECT>Authorities.</SUBJECT> <SECTNO>8.2</SECTNO> <SUBJECT>Policy.</SUBJECT> <SECTNO>8.3</SECTNO> <SUBJECT>Scope.</SUBJECT> <SECTNO>8.4</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>8.5</SECTNO> <SUBJECT>Creation of a committee.</SUBJECT> <SECTNO>8.6</SECTNO> <SUBJECT>Membership.</SUBJECT> <SECTNO>8.7</SECTNO> <SUBJECT>Security.</SUBJECT> <SECTNO>8.8</SECTNO> <SUBJECT>Chartering of committees.</SUBJECT> <SECTNO>8.9</SECTNO> <SUBJECT>Meetings of advisory committees.</SUBJECT> <SECTNO>8.10</SECTNO> <SUBJECT>Reports.</SUBJECT> <SECTNO>8.11</SECTNO> <SUBJECT>Records.</SUBJECT> <SECTNO>8.12</SECTNO> <SUBJECT>Financial records.</SUBJECT> <SECTNO>8.13</SECTNO> <SUBJECT>Availability of records.</SUBJECT> <SECTNO>8.14</SECTNO> <SUBJECT>Public inquiries.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>22 U.S.C. 2658; sec. 8(a) Federal Advisory Committee Act (Pub. L. 92-463); E.O. 11769; and OMB Circular A-63, Rev.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>40 FR 28606, July 8, 1975, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 8.1</SECTNO> <SUBJECT>Authorities.</SUBJECT> <P>(a) <E T="03">Regulatory authorities.</E> (1) These regulations are issued to implement the Federal Advisory Committee Act, Pub. L. 92-463, which became effective January 5, 1973, and Office of Management and Budget Circular No. A-63 of March 27, 1974. These regulations also are in accordance with Executive Order 11769 of February 21, 1974, and the responsibilities of the Secretary of State under 22 U.S.C. 2656.</P> <P>(2) These regulations apply to any advisory committee which provides advice to the Department of State or any officer of the Department. However, to the extent that an advisory committee is subject to particular statutory provisions, which are inconsistent with the Federal Advisory Committee Act, these regulations do not apply.</P> <P>(b) <E T="03">Delegated authority.</E> (1) The Deputy Under Secretary for Management has been designated by the Secretary (Delegation of Authority No. 125 signed November 7, 1972) to have full responsibility for the Committee Management function.</P> <P>(2) The Advisory Committee Management Officer in the Management Systems Staff administers the Committee Management Program for the Deputy Under Secretary for Management.</P> </SECTION> <SECTION> <SECTNO>§ 8.2</SECTNO> <SUBJECT>Policy.</SUBJECT> <P>(a) Advisory Committees are to be used for obtaining advice and recommendations on matters for which they were established, and may be utilized only when the information sought is not otherwise efficiently and economically available.</P> <P>(b) Unless provided otherwise by statute or Presidential directive, advisory committees shall be utilized solely for advisory functions and any decision taken pursuant to the advice or recommendation of an advisory committee is the responsibility of the appropriate Department officer. For the purposes of this provision, “Presidential directive” includes an executive order or executive memorandum.</P> <P>(c) Meetings of advisory committees will be open to the public unless there is a compelling reason which requires nondisclosure of the subject matter in accordance with public law (5 U.S.C. 552 (b)).</P> </SECTION> <SECTION> <SECTNO>§ 8.3</SECTNO> <SUBJECT>Scope.</SUBJECT> <P>(a) The Federal Advisory Committee Act applies to committees “established” by the Government and to committees “utilized” though not established by the Government.</P> <P>(1) The President and the Congress, or the Department in consultation with the Office of Management and Budget, may <E T="03">establish</E> a group which shall be known as an advisory committee for the purpose of obtaining advice or recommendations and which shall be subject to the Federal Advisory Committee Act throughout its existence.</P> <P>(2) Though not established by the President or the Department, a group <E T="03">utilized</E> for the purpose of obtaining advice or recommendations must file a charter prior to a meeting, and otherwise conform to the requirements of the Act during any meetings or other contacts with the Department.</P> <P>(b) One requisite for coverage of either type (established or utilized) under the Federal Advisory Committee Act is that the group can be defined as a committee as set forth in the definition of a committee, as contained in § 8.4 of these regulations, and have all or most of the following characteristics:<PRTPAGE P="23"/> </P> <P>(1) The purpose, objective or intent is that of providing advice to any officer or organizational component of the Department;</P> <P>(2) Has regular or periodic meetings;</P> <P>(3) Has fixed membership (membership may include more than one full time Federal officer or employee but is not comprised wholly of Government personnel);</P> <P>(4) Has an organizational structure (e.g., officers) and a staff.</P> <P>(c) Where a group provides some advice to an agency, but the group's advisory function is incidental to and inseparable from other operational functions such as making or implementing decisions, the Federal Advisory Committee Act does not apply.</P> <P>(d) Where the advisory function of a group is separable from its operational function, the group is subject to the Act to the extent that it operates as an advisory committee.</P> </SECTION> <SECTION> <SECTNO>§ 8.4</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>(a) The Federal Advisory Committee Act defines advisory committee as any committee, board, commission, council, conference, panel, task force, or other similar group, or any subcommittee or other subgroup thereof, which is—</P> <P>(1) Established by statute or reorganization plan, or</P> <P>(2) Established or utilized by the President, or</P> <P>(3) Established or utilized by one or more agencies, in the interest of obtaining advice or recommendations for the President or one or more agencies or officers of the Federal Government, except a committee composed wholly of full-time officers and employees of the Government.</P> <P>(b) A formal subgroup or subcommittee independently possesses significant requisites of an advisory committee, <E T="03">i.e.</E>, fixed membership, periodic meetings, et cetera.</P> <P>(c) An informal subgroup or subcommittee is one that facilitates the activities of its advisory committee. For example, during a particular meeting, the advisory committee may divide itself into subgroups to permit simultaneous discussion of different topics.</P> </SECTION> <SECTION> <SECTNO>§ 8.5</SECTNO> <SUBJECT>Creation of a committee.</SUBJECT> <P>(a) A bureau or an office designated or desiring to sponsor an advisory committee will prepare a memorandum to the Advisory Committee Management Officer setting forth the purpose, organization (including subgroups), proposed balanced membership (see § 8.6), and a justification for the need of the particular committee.</P> <P>(b) The Advisory Committee Management Officer will review the request and will make an action recommendation to the Deputy Under Secretary for Management through the Director of the Management Systems Staff.</P> <P>(c) If the Deputy Under Secretary for Management approves the request, it will be submitted to the Committee Management Secretariat of the Office of Management and Budget for approval. The OMB Secretariat will usually take action within 15 days.</P> <P>(d) The Advisory Committee Management Officer will advise the sponsoring bureau or office of the approval for or rejection of the request to establish the advisory committee.</P> <P>(e) After OMB approval the intent to establish an advisory committee, containing a description of the committee and a statement of why it is in the public interest to create it, will be published in the <E T="04">Federal Register</E> at least 15 days prior to filing the committee charter.</P> </SECTION> <SECTION> <SECTNO>§ 8.6</SECTNO> <SUBJECT>Membership.</SUBJECT> <P>(a) The act requires a balanced membership in terms of the points of view represented. Members are selected for their expertise in the committee's functions and should be chosen from different vocations having knowledge in the subject.</P> <P>(b) It is Department policy that members will be selected without regard to national origin, religion, race, sex, or color.</P> <P>(c) The committee office will keep the Advisory Committee Management Officer currently advised of a committee's membership including vacancies.</P> </SECTION> <SECTION> <PRTPAGE P="24"/> <SECTNO>§ 8.7</SECTNO> <SUBJECT>Security.</SUBJECT> <P>(a) All officers and members of a committee must have a security clearance for the subject matter level of security at which the committee functions.</P> <P>(b) The responsible committee office will provide the Advisory Committee Management Officer with each member's security clearance level and date of issue.</P> <P>(c) The substantive office sponsoring an advisory committee is responsible for access to and removal from official premises of classified material in accordance with the Department's security regulations (5 FAM 940 and 973). Any questions arising involving security procedures are to be presented to the Office of Security for guidance and resolution.</P> </SECTION> <SECTION> <SECTNO>§ 8.8</SECTNO> <SUBJECT>Chartering of committees.</SUBJECT> <P>(a) <E T="03">Requirements.</E> (1) Each advisory committee, whether established or utilized, must have a charter approved by the Deputy Under Secretary of State for Management and filed with the Advisory Committee Management Officer, the Senate Foreign Relations Committee and the House Committee on International Relations, and in the case of a Presidential advisory committee only with the Committee Management Secretariat of OMB before it can hold a meeting.</P> <P>(2) Formal subgroups may be chartered separately or the requisite information set forth in the charter of the parent committee.</P> <P>(3) Informal subgroups may not require a charter; however, the charter of the parent committee must cover this aspect of its organization.</P> <P>(4) The Advisory Committee Management Officer will, at the time a charter is filed, furnish a copy of the filed charter to the Library of Congress.</P> <P>(b) <E T="03">Contents.</E> Each committee charter shall contain: The official name and acronym, if any; the objectives, scope of activity, and full description of duties; the authority for such functions; the Department official (by title) to whom the committee reports; the relationship to or with other committees; the committee organization, composition of membership and officers' responsibilities; a description of the type of minutes, with their certification of accuracy, and records to be maintained; the estimated annual operating costs in dollars and man-years, and the source and authority for these resources; the period of time that will be required by the committee to accomplish its stated purpose; the estimated number and frequency of meetings; the termination date; and the filing date of the charter.</P> <P>(c) <E T="03">Termination and Renewal.</E> (1) An existing advisory committee will be automatically terminated at the end of a 2-year period (<E T="03">i.e.</E>, date specified in charter) unless its charter is renewed, except for a statutory committee which has provisions providing to the contrary.</P> <P>(2) The Deputy Under Secretary for Management will make a determination, based on a comprehensive review, whether or not a committee will be continued.</P> <P>(3) The OMB Secretariat will be advised of the determination and reasons therefore 60 days prior to the charter expiration date of the committee. If the Secretariat concurs, the Advisory Committee Management Officer will publish in the <E T="04">Federal Register</E> the Department's intent to continue those advisory committees so designated by the Deputy Under Secretary for Management.</P> <P>(4) Each office responsible for an advisory committee it wishes to continue will prepare a new charter and submit it to the Advisory Committee Management Officer before October 1 biennially.</P> <P>(5) No advisory committee shall meet, advise or make recommendations between the expiration date of its charter and the date its new charter is filed.</P> <P>(d) <E T="03">Amendments.</E> (1) The charter of a committee may be amended, as necessary, to reflect current information on organization, composition, activities, et cetera.</P> <P>(2) A proposed amendment must be approved prior to any committee activity to which the proposed amendment relates.</P> </SECTION> <SECTION> <SECTNO>§ 8.9</SECTNO> <SUBJECT>Meetings of advisory committees.</SUBJECT> <P>(a) <E T="03">Applicability.</E> The term “meeting” covers any situation in which all or <PRTPAGE P="25"/>some of the members of an advisory committee convene with a representative of the Department to transact committee business or to discuss matters related to the committee. This is applicable to an advisory committee and to its subordinate components.</P> <P>(b) <E T="03">Designated Department official.</E> (1) No advisory committee may hold a meeting in the absence of the designated full-time Department or other U.S. Government officer.</P> <P>(2) The designated Department or other U.S. Government officer has the following responsibilities:</P> <P>(i) Prepares or approves the agenda for all meetings;</P> <P>(ii) Calls or approves in advance the calling of the meetings;</P> <P>(iii) Adjourns any meeting whenever he or she determines that adjournment is in the public interest.</P> <P>(c) <E T="03">Notice of meetings.</E> (1) All advisory committee meetings, open or closed, will be publicly announced except when the President of the United States determines otherwise for reasons of national security.</P> <P>(2) Notice of each such meeting shall be published in the <E T="04">Federal Register</E> and in a Department of State Press Release at least 15 days prior to the meeting date.</P> <P>(3) The responsible committee office will prepare the notice and press release, obtaining clearances as set forth in paragraphs (c)(3) (i) and (ii) of this section, and deliver to the Advisory Committee Management Officer for action:</P> <P>(i) <E T="03">Open meeting</E>—clearance within initiating office/bureau;</P> <P>(ii) <E T="03">Closed meeting</E>—clearance within initiating office/bureau including its legal adviser, and the Bureau of Public Affairs at the Bureau level.</P> <P>(4) The Deputy Under Secretary for Management will determine if an advisory committee may hold a closed meeting, after a request for a meeting not open to the public is cleared by the Advisory Committee Management Officer and the Office of the Legal Adviser.</P> <P>(5) After the clearances set forth in paragraphs (c) (3) and (4) of this section, a notification of meeting may also be provided by the office/bureau to any persons or organizations known to be interested in the activities of the committee.</P> <P>(6) The office sponsoring the committee is responsible for meeting publishing date requirements. Overall normal processing time prior to a meeting date is 25 days for an open meeting and 47 days for a closed meeting.</P> <P>(d) <E T="03">Contents of notice.</E> (1) The content of the <E T="04">Federal Register</E> public notice and the Department of State press release will be identical.</P> <P>(2) An <E T="03">open meeting</E> announcement will state the name of the committee; the date, time, and place of the meeting; the agenda or summary thereof; that the meeting will be open to the public; the extent to which the public may participate in the meeting, either orally or in writing; seating space available; and the name and telephone number of a committee officer to whom inquiries may be directed, including arrangments for those attending if the meeting is in a secure building.</P> <P>(3) A <E T="03">closed meeting</E> announcement will state the name of the committee, the date of meeting and the reason or reasons which justify the closing of the meeting in the public interest.</P> <P>(e) <E T="03">Closed meetings.</E> (1) An advisory committee meeting may be closed in accordance with the Federal Advisory Committee Act when the President or Department determines that the meeting is concerned with matters listed in section 552(b) of title 5, United States Code.</P> <P>(2) Any determination to close all or a part of a meeting must be based upon specific reasons. If a meeting is to cover separable matters, not all of which are within the exemptions of 5 U.S.C. 552(b), only the portion of the meeting dealing with exempt matters may be closed.</P> <P>(3) When a meeting or portion of a meeting is to be closed to the public, the notice should state the reasons for the closing.</P> <P>(4) The written request in accordance with paragraph (c)(4) of this section, for a determination by the Deputy Under Secretary for Management that a committee may hold a closed meeting must be submitted at least 47 days before the scheduled date of the meeting unless the Deputy Under Secretary <PRTPAGE P="26"/>for Management determines that a shorter period of time is necessary.</P> <P>(f) <E T="03">Cancelled meetings.</E> (1) The cancellation of a scheduled committee meeting must be publicized without delay.</P> <P>(2) The responsible committee office will prepare a public notice and press release and hand-carry them to the Advisory Committee Management Officer as soon as the decision to cancel the meeting is made.</P> <P>(3) The notice and press release will state the name of the advisory committee, identify the meeting that is cancelled, and state why it is cancelled. The <E T="04">Federal Register</E> data, if known, concerning the announcement should be cited.</P> <P>(g) <E T="03">Rescheduled meetings.</E> When it is not feasible to hold an advisory committee meeting on the date that has been announced such meeting may be rescheduled for a later date by utilizing the same procedure as set forth in paragraph (f) of this section except the word rescheduled is substituted for cancelled.</P> <P>(h) <E T="03">Minutes.</E> (1) <E T="03">Detailed minutes</E> of each advisory committee meeting, including subgroups, shall be kept.</P> <P>(2) The minutes for an <E T="03">open meeting</E> shall as a minimum cover the folllowing items: The time and place of the meeting; a listing of advisory committee members and staff and agency employees present at the meeting; a complete summary of matters discussed and conclusions reached; copies of all reports received, issued, or approved by the advisory committee; a description of the extent to which the meeting was open to the public; an explanation of the extent of public participation, including a list of members of the public who presented oral or written statements; and an estimate of the number of members of the public who attended the meeting.</P> <P>(3) The minutes for a <E T="03">closed meeting</E> shall include all that is required for an open meeting except those items relating to the presence of the public.</P> <P>(4) The chairperson of each advisory committee shall certify the accuracy of the committee minutes.</P> <SECAUTH>(22 U.S.C. 2658 and 3926)</SECAUTH> <CITA>[40 FR 28606, July 8, 1975, as amended at 49 FR 16989, Apr. 23, 1984]</CITA> </SECTION> <SECTION> <SECTNO>§ 8.10</SECTNO> <SUBJECT>Reports.</SUBJECT> <P>(a) There are two categories of reports on advisory committees. One category is concerned with management and the other with advisory activities.</P> <P>(b) Management reports include:</P> <P>(1) <E T="03">Comprehensive Review.</E> An annual review shall be conducted on a calendar year basis to determine the essentiality of the committee. The results of that Review are included in the Annual Report. The due date is <E T="03">October 1.</E> </P> <P>(2) <E T="03">Annual Report.</E> A calendar year report which covers the status of the committee. It is a component report for the President's annual report to the Congress. The due date is <E T="03">December 31.</E> </P> <P>(3) <E T="03">Report of Closed Meeting(s).</E> A summary of the activities and related matters discussed by a committee during a closed meeting shall be prepared annually. It is to be as informative as possible for the public consistent with section 552(b) policy of the Freedom of Information Act.</P> <P>(4) <E T="03">Other reports.</E> Other management reports that may be required, such as requests from the Office of Management and Budget, Congressional Committees, et cetera, will be submitted in accordance with the requested due date.</P> <P>(c) Advisory activities reports are reports issued by the committee. They are to be submitted, when prepared in final as a committee document or published, on a current basis.</P> <P>(d) All reports are submitted to the Advisory Committee Management Officer.</P> <P>(1) The Comprehensive Review is signed by the responsible committee officer and approved by the bureau/office policy making officer. It is submitted in original only.</P> <P>(2) The Annual Report will be prepared on Standard Forms 248 and 249 in original and one copy. (Instructions for preparation are printed on the back of the forms.)</P> <P>(3) The Report of Closed Meeting(s) is signed by the committee chairman and submitted in original and 8 copies.</P> <P>(4) The Advisory activities reports are submitted in 9 copies each, except Presidential advisory committee reports are submitted in 12 copies.</P> </SECTION> <SECTION> <PRTPAGE P="27"/> <SECTNO>§ 8.11</SECTNO> <SUBJECT>Records.</SUBJECT> <P>(a) The records of an advisory committee consist of all papers and documents which are prepared for or by and/or made available to the committee, and are maintained by the office responsible for the committee. Such records are <E T="03">inter alia</E> agenda, drafts, minutes, notices, press releases, reports, studies, transcripts, and working papers.</P> <P>(b) The Advisory Committee Management Officer maintains the Department's official records relating to the management of all committees.</P> </SECTION> <SECTION> <SECTNO>§ 8.12</SECTNO> <SUBJECT>Financial records.</SUBJECT> <P>Accurate records will be kept by the responsible committee office of all operating and salary costs of a committee. (See instruction item 17 on SF-248.)</P> </SECTION> <SECTION> <SECTNO>§ 8.13</SECTNO> <SUBJECT>Availability of records.</SUBJECT> <P>The records of a committee are to be made available upon request in accordance with the Department's regulations promulgated in accordance with the provisions of the Freedom of Information Act (40 <E T="04">Federal Register</E> 7256-7529, February 19, 1975).</P> </SECTION> <SECTION> <SECTNO>§ 8.14</SECTNO> <SUBJECT>Public inquiries.</SUBJECT> <P>Public inquiries concerning the implementation of the Federal Advisory Committee Act and the management of the advisory committees of the Department should be addressed to the Advisory Committee Management Officer, Management Systems Staff, Department of State, Washington, DC 20520.</P> </SECTION> </PART> <PART> <EAR>Pt. 9</EAR> <HD SOURCE="HED">PART 9—SECURITY INFORMATION REGULATIONS</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>9.1</SECTNO> <SUBJECT>Basis.</SUBJECT> <SECTNO>9.2</SECTNO> <SUBJECT>Objective.</SUBJECT> <SECTNO>9.3</SECTNO> <SUBJECT>Senior agency official.</SUBJECT> <SECTNO>9.4</SECTNO> <SUBJECT>Original classification.</SUBJECT> <SECTNO>9.5</SECTNO> <SUBJECT>Original classification authority.</SUBJECT> <SECTNO>9.6</SECTNO> <SUBJECT>Derivative classification.</SUBJECT> <SECTNO>9.7</SECTNO> <SUBJECT>Identification and marking.</SUBJECT> <SECTNO>9.8</SECTNO> <SUBJECT>Classification challenges.</SUBJECT> <SECTNO>9.9</SECTNO> <SUBJECT>Declassification and downgrading.</SUBJECT> <SECTNO>9.10</SECTNO> <SUBJECT>Mandatory declassification review.</SUBJECT> <SECTNO>9.11</SECTNO> <SUBJECT>Systematic declassification review.</SUBJECT> <SECTNO>9.12</SECTNO> <SUBJECT>Access to classified information by historical researchers and certain former government personnel.</SUBJECT> <SECTNO>9.13</SECTNO> <SUBJECT>Safeguarding.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>E.O. 12958 (60 FR 19825, April 20, 1995) as amended; Information Security Oversight Office Directive No. 1, 32 CFR 2001 (68 FR 55168, Sept. 22, 2003).</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>72 FR 30972, June 5, 2007, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 9.1</SECTNO> <SUBJECT>Basis.</SUBJECT> <P>These regulations, taken together with the Information Security Oversight Office Directive No. 1 dated September 22, 2003, 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 12958, “Classified National Security Information”, as amended (“the Executive Order”).</P> </SECTION> <SECTION> <SECTNO>§ 9.2</SECTNO> <SUBJECT>Objective.</SUBJECT> <P>The objective of the Department's classification program is to ensure that national security information is protected from unauthorized disclosure, but only to the extent and for such a period as is necessary.</P> </SECTION> <SECTION> <SECTNO>§ 9.3</SECTNO> <SUBJECT>Senior agency official.</SUBJECT> <P>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 Information Sharing Services.</P> </SECTION> <SECTION> <SECTNO>§ 9.4</SECTNO> <SUBJECT>Original classification.</SUBJECT> <P>(a) <E T="03">Definition.</E> Original classification is the initial determination that certain information requires protection against unauthorized disclosure in the interest of national security (<E T="03">i.e.</E>, national defense or foreign relations of the United States), together with a designation of the level of classification.<PRTPAGE P="28"/> </P> <P>(b) <E T="03">Classification levels.</E> (1) <E T="03">Top Secret</E> 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.</P> <P>(2) <E T="03">Secret</E> 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.</P> <P>(3) <E T="03">Confidential</E> 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.</P> <P>(c) <E T="03">Classification requirements and limitations.</E> (1) Information may not be considered for classification unless it concerns:</P> <P>(i) Military plans, weapons systems, or operations;</P> <P>(ii) Foreign government information;</P> <P>(iii) Intelligence activities (including special activities), intelligence sources or methods, or cryptology;</P> <P>(iv) Foreign relations or foreign activities of the United States, including confidential sources;</P> <P>(v) Scientific, technological, or economic matters relating to the national security; which includes defense against transnational terrorism;</P> <P>(vi) United States Government programs for safeguarding nuclear materials or facilities;</P> <P>(vii) Vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans, or protection services relating to the national security, which includes defense against transnational terrorism; or</P> <P>(viii) Weapons of mass destruction.</P> <P>(2) In classifying information, the public's interest in access to government information must be balanced against the need to protect national security information.</P> <P>(3) 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.</P> <P>(4) 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.</P> <P>(5) Only information owned by, produced by or for, or under the control of the U.S. Government may be classified.</P> <P>(6) The unauthorized disclosure of foreign government information is presumed to cause damage to national security.</P> <P>(d) <E T="03">Duration of classification.</E> (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 shall be marked for declassification for up to 25 years.</P> <P>(2) An original classification authority may extend the duration of classification, change the level of classification, or reclassify specific information only when the standards and procedures for classifying information under the Executive Order are met.</P> <P>(3) Information marked for an indefinite duration of classification under predecessor orders, such as “Originating Agency's Determination Required” (OADR) or containing no declassification instructions shall be subject to the declassification provisions of Part 3 of the Order, including the provisions of section 3.3 regarding automatic declassification of records older than 25 years.</P> </SECTION> <SECTION> <SECTNO>§ 9.5</SECTNO> <SUBJECT>Original classification authority.</SUBJECT> <P>(a) Authority for original classification of information as <E T="03">Top Secret</E> may be exercised by the Secretary and those officials delegated this authority in <PRTPAGE P="29"/>writing by the Secretary. Such authority has been delegated to the Deputy Secretary, the Under Secretaries, Assistant Secretaries and other Executive Level IV officials and their deputies; Chiefs of Mission, Charge d'Affaires, and Principal Officers at autonomous posts abroad; and to other officers within the Department as set forth in Department Notice dated May 26, 2000.</P> <P>(b) Authority for original classification of information as <E T="03">Secret or Confidential</E> 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 Office Directors and Division Chiefs in the Department, Section Heads in Embassies and Consulates abroad, and other officers within the Department as set forth in Department Notice dated May 26, 2000. In the absence of the Secret or Confidential classification authority, the person designated to act for that official may exercise that authority.</P> </SECTION> <SECTION> <SECTNO>§ 9.6</SECTNO> <SUBJECT>Derivative classification.</SUBJECT> <P>(a) <E T="03">Definition.</E> 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. Duplication or reproduction of existing classified information is not derivative classification.</P> <P>(b) <E T="03">Responsibility.</E> 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 the ISOO implementing directives in 32 CFR 2001.22.</P> <P>(c) <E T="03">Department of State Classification Guide.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 9.7</SECTNO> <SUBJECT>Identification and marking.</SUBJECT> <P>(a) Classified information shall be marked pursuant to the standards set forth in section 1.6 of the Executive Order; ISOO implementing directives in 32 CFR 2001, Subpart B; and internal Department guidance in 12 Foreign Affairs Manual (FAM).</P> <P>(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.</P> <P>(c) Information assigned a level of classification under predecessor executive orders shall be considered as classified at that level of classification.</P> </SECTION> <SECTION> <SECTNO>§ 9.8</SECTNO> <SUBJECT>Classification challenges.</SUBJECT> <P>(a) <E T="03">Challenges.</E> 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. Holders of information 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 20522-6001. The Department (either the OCA or IPS) shall provide an initial response in writing within 60 days.</P> <P>(b) <E T="03">Appeal procedures and time limits.</E> 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 Information and Privacy Coordinator/Appeals Officer, at the IPS address given above. The appeal shall include a <PRTPAGE P="30"/>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 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 12958. If the Department fails to respond to a formal challenge within 120 days or if the ARP fails to respond to an appeal within 90 days, the challenge may be sent to the ISCAP.</P> </SECTION> <SECTION> <SECTNO>§ 9.9</SECTNO> <SUBJECT>Declassification and downgrading.</SUBJECT> <P>(a) <E T="03">Declassification processes.</E> Declassification of classified information may occur:</P> <P>(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;</P> <P>(2) After review as part of the Department's systematic declassification review program;</P> <P>(3) As a result of the elapse of the time or the occurrence of the event specified at the time of classification;</P> <P>(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.</P> <P>(b) <E T="03">Downgrading.</E> 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.</P> <P>(c) <E T="03">Authority to downgrade and declassify.</E> (1) Classified information may be downgraded or declassified by the official who originally classified the information if that official is still serving in the same position, by a successor in that capacity, by a supervisory official of either, or by any other official specifically designated by the Secretary or the senior agency official.</P> <P>(2) The Department shall maintain a record of Department officials specifically designated as declassification and downgrading authorities.</P> <P>(d) <E T="03">Declassification in the public interest.</E> 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.</P> <P>(e) <E T="03">Public dissemination of declassified information.</E> Declassification of information is not authorization for its public disclosure. Previously classified information that is declassified may be subject to withholding from public disclosure under the FOIA, the Privacy Act, and various statutory confidentiality provisions.</P> </SECTION> <SECTION> <SECTNO>§ 9.10</SECTNO> <SUBJECT>Mandatory declassification review.</SUBJECT> <P>All requests to the Department by a member of the public, a government employee, or an agency to declassify and release information shall result in a prompt declassification review of the information in accordance with procedures set forth in 22 CFR 171.20-25. Mandatory declassification review requests should be directed to the Information and Privacy Coordinator, U.S. Department of State, SA-2, 515 22nd St., NW., Washington, DC 20522-6001.</P> </SECTION> <SECTION> <SECTNO>§ 9.11</SECTNO> <SUBJECT>Systematic declassification review.</SUBJECT> <P>The Information and Privacy Coordinator 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. The Information and Privacy Coordinator shall prioritize such <PRTPAGE P="31"/>review on the basis of researcher interest and the likelihood of declassification upon review.</P> </SECTION> <SECTION> <SECTNO>§ 9.12</SECTNO> <SUBJECT>Access to classified information by historical researchers and certain former government personnel.</SUBJECT> <P>For Department procedures regarding the access to classified information by historical researchers and certain former government personnel, see Sec. 171.24 of this Title.</P> </SECTION> <SECTION> <SECTNO>§ 9.13</SECTNO> <SUBJECT>Safeguarding.</SUBJECT> <P>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.</P> </SECTION> </PART> <PART> <EAR>Pt. 9a</EAR> <HD SOURCE="HED">PART 9a—SECURITY INFORMATION REGULATIONS APPLICABLE TO CERTAIN INTERNATIONAL ENERGY PROGRAMS; RELATED MATERIAL</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>9a.1</SECTNO> <SUBJECT>Security of certain information and material related to the International Energy Program.</SUBJECT> <SECTNO>9a.2</SECTNO> <SUBJECT>General policy.</SUBJECT> <SECTNO>9a.3</SECTNO> <SUBJECT>Scope.</SUBJECT> <SECTNO>9a.4</SECTNO> <SUBJECT>Classification.</SUBJECT> <SECTNO>9a.5</SECTNO> <SUBJECT>Declassification and downgrading.</SUBJECT> <SECTNO>9a.6</SECTNO> <SUBJECT>Marking.</SUBJECT> <SECTNO>9a.7</SECTNO> <SUBJECT>Access.</SUBJECT> <SECTNO>9a.8</SECTNO> <SUBJECT>Physical protection.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>E.O. 11932 (41 FR 32691), E.O. 11652 (37 FR 5209, National Security Council Directive of May 17, 1972 (37 FR 10053).</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>42 FR 46516, Sept. 16, 1977; 42 FR 57687, Nov. 4, 1977, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 9a.1</SECTNO> <SUBJECT>Security of certain information and material related to the International Energy Program.</SUBJECT> <P>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.”</P> </SECTION> <SECTION> <SECTNO>§ 9a.2</SECTNO> <SUBJECT>General policy.</SUBJECT> <P>(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.</P> <P>(b) These regulations establish procedures for the classification, declassification, storage, access, and dissemination of certain information related to the International Energy Program.</P> </SECTION> <SECTION> <SECTNO>§ 9a.3</SECTNO> <SUBJECT>Scope.</SUBJECT> <P>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.”</P> </SECTION> <SECTION> <SECTNO>§ 9a.4</SECTNO> <SUBJECT>Classification.</SUBJECT> <P>(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.</P> <P>(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 <PRTPAGE P="32"/>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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 9a.5</SECTNO> <SUBJECT>Declassification and downgrading.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 9a.6</SECTNO> <SUBJECT>Marking.</SUBJECT> <P>(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: </P> <EXTRACT> <FP SOURCE="FP-1">(Top Secret, Secret or Confidential)</FP> <FP SOURCE="FP-1">Classified by: _______________</FP> <FP SOURCE="FP-1">Under Executive Order 11932</FP> <FP SOURCE="FP-1">Exempt from General Declassification Schedule of E.O. 11652 Exemption Category section 5B (2), (3), or (4); or E.O. 11932</FP> <FP SOURCE="FP-1">Automatically Declassified on _______</FP> <FP SOURCE="FP-1">(effective date or event if any)</FP> </EXTRACT> <FP>Exemption category “E.O. 11932” shall be used for information and material obtained by the United States on e understanding that it be kept in confidence and classified under E.O. 11932.</FP> <P>(b) If the information or material does not qualify for exemption from the General Declassification Schedule, ordinary stamps and marking may be used.</P> </SECTION> <SECTION> <SECTNO>§ 9a.7</SECTNO> <SUBJECT>Access.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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: <E T="03">Provided,</E> 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.</P> <P>(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: <E T="03">Provided,</E> 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.</P> <P>(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.</P> </SECTION> <SECTION> <PRTPAGE P="33"/> <SECTNO>§ 9a.8</SECTNO> <SUBJECT>Physical protection.</SUBJECT> <P>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.</P> </SECTION> </PART> <PART> <EAR>Pt. 9b</EAR> <HD SOURCE="HED">PART 9b—REGULATIONS GOVERNING DEPARTMENT OF STATE PRESS BUILDING PASSES</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>9b.1</SECTNO> <SUBJECT>Press access to the Department of State.</SUBJECT> <SECTNO>9b.2</SECTNO> <SUBJECT>Press correspondents employed by United States media organizations.</SUBJECT> <SECTNO>9b.3</SECTNO> <SUBJECT>Press correspondents employed by foreign media organizations.</SUBJECT> <SECTNO>9b.4</SECTNO> <SUBJECT>Department of State building press pass for technical crews.</SUBJECT> <SECTNO>9b.5</SECTNO> <SUBJECT>Temporary Department of State press building passes.</SUBJECT> <SECTNO>9b.6</SECTNO> <SUBJECT>Grounds for denial, revocation, or non-renewal of Department of State press building passes.</SUBJECT> <SECTNO>9b.7</SECTNO> <SUBJECT>Procedures for denial, revocation, or non-renewal of Department of State press building passes.</SUBJECT> <SECTNO>9b.8</SECTNO> <SUBJECT>Term and renewal of Department of State press building passes.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>22 U.S.C. 2658.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>49 FR 4465, Feb. 7, 1984, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 9b.1</SECTNO> <SUBJECT>Press access to the Department of State.</SUBJECT> <P>(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.</P> <P>(b) Media correspondents holding valid Department of State press building passes:</P> <P>(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).</P> <P>(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.</P> <P>(3) May not escort non-passholders into the Department of State building.</P> <P>(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.</P> <P>(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.</P> <CITA>[54 FR 1686, Jan. 17, 1989]</CITA> </SECTION> <SECTION> <SECTNO>§ 9b.2</SECTNO> <SUBJECT>Press correspondents employed by United States media organizations.</SUBJECT> <P>In order to obtain a Department of State press building pass, press correspondents employed by United States media organizations must:</P> <P>(a) Present to the Office of Press Relations, Department of State, a letter from his or her organization stating:</P> <P>(1) That the applicant is a bona fide, full-time media correspondent based permanently and residing in the Washington, DC, metropolitan area;</P> <P>(2) That the applicant is employed by the certifying organization;</P> <P>(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.</P> <P>(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 <PRTPAGE P="34"/>DSP-97 requires the following information:</P> <P>(1) Name;</P> <P>(2) Affiliation with news media organizations;</P> <P>(3) Date of birth;</P> <P>(4) Place of birth;</P> <P>(5) Sex;</P> <P>(6) Citizenship;</P> <P>(7) Social Security or passport number;</P> <P>(8) Marital status;</P> <P>(9) Spouse name;</P> <P>(10) Office address and telephone number;</P> <P>(11) Length of employment;</P> <P>(12) Home address and telephone number; and</P> <P>(13) Length of residence.</P> <CITA>[49 FR 4465, Feb. 7, 1984, as amended at 54 FR 1686, Jan. 17, 1989]</CITA> </SECTION> <SECTION> <SECTNO>§ 9b.3</SECTNO> <SUBJECT>Press correspondents employed by foreign media organizations.</SUBJECT> <P>In order to obtain a Department of State press building pass, correspondents employed by foreign media organizations must:</P> <P>(a) Present to the Office of Press Relations, Department of State, Washington, DC 20520 a letter from his or her organization stating:</P> <P>(1) That the applicant is a bona fide, full-time media correspondent based permanently and residing in the Washington, DC, metropolitan area:</P> <P>(2) That the applicant is employed by the certifying organization;</P> <P>(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.</P> <P>(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.</P> <P>(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:</P> <P>(1) Name;</P> <P>(2) Affiliation with news media organizations;</P> <P>(3) Date of birth;</P> <P>(4) Place of birth;</P> <P>(5) Sex;</P> <P>(6) Citizenship;</P> <P>(7) Social Security or passport number;</P> <P>(8) Marital status;</P> <P>(9) Spouse name;</P> <P>(10) Office address and telephone number;</P> <P>(11) Length of employment;</P> <P>(12) Home address and telephone number; and</P> <P>(13) Length of residence.</P> <CITA>[49 FR 4465, Feb. 7, 1984, as amended at 54 FR 1687, Jan. 17, 1989]</CITA> </SECTION> <SECTION> <SECTNO>§ 9b.4</SECTNO> <SUBJECT>Department of State building press pass for technical crews.</SUBJECT> <P>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.</P> <CITA>[54 FR 1687, Jan. 17, 1989]</CITA> </SECTION> <SECTION> <SECTNO>§ 9b.5</SECTNO> <SUBJECT>Temporary Department of State press building passes.</SUBJECT> <P>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 <PRTPAGE P="35"/>Press Relations for the issuance of a visitor's pass valid for one day.</P> <CITA>[54 FR 1687, Jan. 17, 1989]</CITA> </SECTION> <SECTION> <SECTNO>§ 9b.6</SECTNO> <SUBJECT>Grounds for denial, revocation, or non-renewal of Department of State press building passes.</SUBJECT> <P>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:</P> <P>(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,</P> <P>(b) Poses a risk of harm to the personal safety of Department of State or other Governmental personnel or to Government property; or</P> <P>(c) Engages or engaged in conduct which there are reasonable grounds to believe might violate federal or state law or Department of State regulations.</P> <P>(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).</P> <P>(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.</P> <CITA>[49 FR 4465, Feb. 7, 1984, as amended at 54 FR 1687, Jan. 15, 1989]</CITA> </SECTION> <SECTION> <SECTNO>§ 9b.7</SECTNO> <SUBJECT>Procedures for denial, revocation, or non-renewal of Department of State press building passes.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.<PRTPAGE P="36"/> </P> <P>(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.</P> <P>(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:</P> <P>(i) The securing of documentary evidence:</P> <P>(ii) Personal interviews:</P> <P>(iii) An informal hearing:</P> <P>(iv) Any combination of paragraphs (f)(3)(i) through (f)(3)(iii) of this section.</P> <P>(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.</P> <CITA>[49 FR 4465, Feb. 7, 1984, as amended at 54 FR 1687, Jan. 17, 1989]</CITA> </SECTION> <SECTION> <SECTNO>§ 9b.8</SECTNO> <SUBJECT>Term and renewal of Department of State press building passes.</SUBJECT> <P>(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.</P> <P>(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.</P> <CITA>[61 FR 3800, Feb. 2, 1996]</CITA> </SECTION> </PART> </SUBCHAP> <SUBCHAP TYPE="P"> <PRTPAGE P="37"/> <HD SOURCE="HED">SUBCHAPTER B—PERSONNEL</HD> <PART> <EAR>Pt. 11</EAR> <HD SOURCE="HED">PART 11—APPOINTMENT OF FOREIGN SERVICE OFFICERS</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>11.1</SECTNO> <SUBJECT>Junior Foreign Service officer career candidate appointments.</SUBJECT> <SECTNO>11.2</SECTNO> <SUBJECT>Written examination for appointment to class 7 or 8.</SUBJECT> <SECTNO>11.3</SECTNO> <SUBJECT>Oral examination for appointment to class 7 or 8.</SUBJECT> <SECTNO>11.4</SECTNO> <SUBJECT>Medical examination for appointment to class 7 or 8.</SUBJECT> <SECTNO>11.5</SECTNO> <SUBJECT>Certification for appointment to class 7 or 8.</SUBJECT> <SECTNO>11.6</SECTNO> <SUBJECT>Final Review Panel.</SUBJECT> <SECTNO>11.7</SECTNO> <SUBJECT>Termination of eligibility.</SUBJECT> <SECTNO>11.8</SECTNO> <SUBJECT>Travel expenses of candidates.</SUBJECT> <SECTNO>11.10</SECTNO> <SUBJECT>Mid-level Foreign Service officer career candidate appointments. [Reserved]</SUBJECT> <SECTNO>11.11</SECTNO> <SUBJECT>Mid-level Foreign Service officer career candidate appointments.</SUBJECT> <SECTNO>11.20</SECTNO> <SUBJECT>Foreign Service specialist career candidate appointments.</SUBJECT> <SECTNO>11.30</SECTNO> <SUBJECT>Senior Foreign Service officer career candidate and limited non-career appointments.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>22 U.S.C. 3926, 3941.</P> </AUTH> <SECTION> <SECTNO>§ 11.1</SECTNO> <SUBJECT>Junior Foreign Service officer career candidate appointments.</SUBJECT> <P>(a) <E T="03">General considerations</E>—(1) <E T="03">Authority.</E> Pursuant to sections 302 and 306 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. Such appointment is initially to career candidate status with subsequent commissioning to career status governed by the provisions of Volume 3 (Personnel), Foreign Affairs Manual, section 570. In accordance with section 102(b) of the Act, all references in these regulations to Foreign Service officers shall, with respect to the United States Information Agency, be deemed to refer to Foreign Service information officers.</P> <P>(2) <E T="03">Veterans' preference.</E> Pursuant to section 301 of the Act, and notwithstanding the provisions of section 3320 of title 5 of the United States Code, the fact that an applicant is a veteran or disabled veteran, as defined in section 2108 (3A), (3B), or (3C) of such title, shall be considered as an affirmative factor in the selection of candidates for appointment as Foreign Service officer career candidates.</P> <P>(3) <E T="03">Policy.</E> Appointment as a Junior 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 converted to career Foreign Service officer status. Those who are not granted tenure prior to the expiration of their Career Candidate appointments will be separated from the Career Candidate program no later than the expiration date of their appointments. Separated candidates who originally were employees of a department or agency will be entitled to reemployment rights in their former department or agency in accordance with section 310 of the Act.</P> <P>(b) <E T="03">Written examination.</E> The following regulations apply to the written examination.</P> <P>(1) <E T="03">Purpose.</E> The written examination is designed to enable the Board of Examiners for the Foreign Service to test the applicant's intelligence, breadth and quality of knowledge, and understanding in relation to the requirements of Foreign Service work.</P> <P>(2) <E T="03">Eligibility.</E> Prior to each written examination, the Board of Examiners will establish a closing date for the receipt of applications for designation to take the examination. No person will be designated to take the examination who has not, as of that closing date, filed an application with the Board. To be designated to take the written examination, an applicant, as of the date of the examination, must be a citizen of the United States and at least 20 years of age.</P> <P>(3) <E T="03">When and where given.</E> The written examination will be given periodically, normally at least once a year, in designated cities in the United States and <PRTPAGE P="38"/>at Foreign Service posts, on dates established by the Board of Examiners and publicly announced.</P> <P>(4) <E T="03">Grading.</E> The several parts of the written examination will be weighted and graded according to standards established by the Board of Examiners. The number of candidates who pass each written examination will be governed by the projected hiring needs of the participating foreign affairs departments and agencies in subsequent years.</P> <P>(c) <E T="03">Oral examination.</E> The following regulations apply to the oral examination:</P> <P>(1) <E T="03">Purpose.</E> The oral examination is designed to enable the Board of Examiners for the Foreign Service to test the candidate's competence to perform the work of a Foreign Service officer at home and abroad, potential for growth in the Foreign Service, and suitability to serve as a representative of the United States abroad. The oral examination for the Junior Career Candidate Program will consist of an assessment procedure publicly announced by the Board of Examiners and hereinafter referred to as the oral examination.</P> <P>(2) <E T="03">Eligibility</E>—(i) <E T="03">Through written examination.</E> (A) Candidates whose weighted score on the written examination is at or above the passing level set by the Board of Examiners will be eligible for selection to take the oral examination. All eligible candidates normally will be invited to take the oral examination.</P> <P>(B) Should the total number of eligible candidates substantially exceed the projected hiring needs of the Foreign Service, the Board of Examiners may establish and publicly announce a higher written examination score than the passing level as the basis for selection to take the oral examination.</P> <P>(C) The Board of Examiners may authorize special consideration to be given in the selection of candidates, from among those eligible, for the purpose of meeting language requirements, Affirmative Action goals, or for other purposes which the Board with the concurrence of the prospective hiring agencies may from time to time approve and publicly announce.</P> <P>(D) The nature and applicability of all criteria utilized to select eligible candidates to take the oral examination will be developed by the Board of Examiners in consultation with the prospective hiring agencies and publicly announced in advance of each examination by the Board.</P> <P>(E) Candidates who are selected to take the oral examination will be notified of the period of time after the date of the written examination, as determined by the Board of Examiners, within which the oral examination must be conducted. That period will normally be 1 year, but it may be extended or shortened in special circumstances by the Board. The candidacy of anyone whose candidacy has not been extended by the Board, and who has not again passed the written examination in the meantime, will be terminated 2 years after the end of the month in which the written examination was held. Time spent outside the United States and its territories, for reasons acceptable to the Board of Examiners, will not be counted against this 2-year period. The candidacy of anyone for whom the 2-year period is extended by the Board because of being abroad will be terminated automatically if the candidate fails to appear for the oral examination within 3 months after first returning to the United States. If a candidate fails to appear for the oral examination on an agreed date within the period of eligibility without an excuse acceptable to the Board, the candidacy will automatically terminate.</P> <P>(ii) <E T="03">Through affirmative action.</E> Members of the minority groups specified by the Equal Opportunity Act of 1972, as amended, may be selected by the Board of Examiners for admission to the oral examination in accordance with the Affirmative Action Programs of the participating departments and agencies. Such candidates must be at least 21 years of age, citizens of the United States, and holders of at least a bachelor's degree from an accredited college or university. Affirmative Action Program applicants will be evaluated on a highly competitive basis, in accordance with criteria established by the Board in conjunction with the participating departments and agencies <PRTPAGE P="39"/>and publicly announced, to determine those to be selected for the oral examination.</P> <P>(iii) <E T="03">Through the mustang program.</E> (A) Employees of the Department of State in classes FS-9 through FS-4 and grades GS-1 through GS-12 who are at least 21 years of age and who have at least 3 years of service with the Department may be selected by the Board of Examiners for admission to the oral examination for the Junior Career Candidate Program in accordance with the Mustang Program of the Department. Such Mustang candidates must: (<E T="03">1</E>) Complete successfully an appropriate Foreign Service Institute-sponsored or approved university or correspondence course relevant to officer-level responsibility in the chosen Foreign Service field of specialization; (<E T="03">2</E>) submit an autobiography of approximately 1000 words; and (<E T="03">3</E>) be recommended by a Qualifications Evaluation Panel of the Board of Examiners for selection for the oral examination.</P> <P>(B) Employees of the Department of State in classes FS-3 and GS-13 and above are eligible for the Mid-Level Career Candidate Program and should apply under that program if they wish to be considered for conversion to Foreign Service officer status (see § 11.10).</P> <P>(iv) <E T="03">Through the upward mobility program.</E> Admission to the oral examination through the Upward Mobility Program of the United States Information Agency is governed by procedures established by that agency.</P> <P>(3) <E T="03">When and where given.</E> The oral examination cycle will be held each year in Washington, DC, and in selected cities in the United States. If circumstances permit, oral examinations may also be held at selected Foreign Service posts when approved by the Board of Examiners.</P> <P>(4) <E T="03">Examining panel.</E> The oral examination will be given by a panel of deputy examiners approved by the Board of Examiners from a roster of Foreign Service officers; Foreign Service information officers; career officers from the Department of State, the United States Information Agency, and the Department of Commerce; and qualified private citizens who, by prior service as members of departmental or agency Foreign Service selection boards or other appropriate activities, have demonstrated special qualifications to serve as deputy examiners. Service as a deputy examiner shall be limited to a maximum of 5 years, unless a further period is specifically authorized by the Board. Examination panels shall be chaired by a career officer of the Foreign Service. Determinations of duly constituted panels of deputy examiners are final unless modified by specific action of the Board of Examiners.</P> <P>(5) <E T="03">Grading.</E> Candidates taking the oral examination will be graded numerically according to standards established and publicly announced 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 and may not be considered again until the candidate has passed a new written examination. An Affirmative Action, Mustang, or Upward Mobility candidate who fails the oral examination may not be considered again until 1 year after that date.</P> <P>(d) <E T="03">Background investigation.</E> Candidates who pass the oral examination will be eligible for selection by the Board for the background investigation. The background investigation shall be conducted to determine the candidate's suitability for appointment to the Foreign Service. Should the total number of eligible candidates substantially exceed the anticipated needs of the Foreign Service, the Board of Examiners may authorize priorities to be established, on the basis of combined written and oral examination scores and Affirmative Action considerations, for scheduling the background investigation.</P> <P>(e) <E T="03">Medical examination</E>—(1) <E T="03">Eligibility.</E> Candidates who pass the oral examination, and their dependents, will be eligible for selection by the Board of Examiners for the medical examination.</P> <P>(2) <E T="03">Purpose.</E> The medical examination shall be conducted to determine the candidate's physical fitness to perform the duties of a Foreign Service officer on a worldwide basis and, for candidates and dependents, to determine the presence of any physical, neurological, or mental condition of such a <PRTPAGE P="40"/>nature as to make it unlikely that they would be able to function on a worldwide basis.</P> <P>(3) <E T="03">Conduct.</E> The medical examination may be conducted by medical officers of the Department of State, the Armed Forces, the Public Health Service, accredited colleges and universities, or by private physicians.</P> <P>(4) <E T="03">Determination.</E> The Medical Director of the Department of State will determine, on the basis of the report of the physician(s) who conducted the medical examination, whether the candidate has met the required medical standards for appointment (see section 1930, Volume 3, Foreign Affairs Manual).</P> <P>(5) <E T="03">Waiver of worldwide availability requirement.</E> When authorized and requested by the candidate, the Director General of the Foreign Service, or the Director General's delegatee, will review the case of any Department of State Foreign Service candidate who has been denied an unlimited medical clearance for assignment worldwide, and determine whether or not the candidate should be appointed despite the medical disqualification. Decisions of the Director General of the Foreign Service, or the Director General's delegatee, are final and are not subject to further appeal by the candidate.</P> <P>(f) <E T="03">Final review panel.</E> After the results of the medical examination and background investigation are received, the candidate's entire file will be reviewed and graded by a Final Review Panel, consisting of two or more deputy examiners of the Board of Examiners. Candidates who have completed the examination process; have passed their medical examination, or have obtained a waiver from the Director General of the Foreign Service, or his or her delegatee, or the equivalent in accordance with the procedures of the other participating agencies; and on the basis of their background investigation, have been found suitable to represent the United States abroad, will have their names placed on the functional rank-order register(s), or a special register, for the agency or agencies for which they have been found qualified. Thereafter, they will be considered for employment based on the needs of the individual foreign affairs agencies. The candidacy of any candidate who is determined by the Final Review Panel to be unqualified for appointment shall be terminated and the candidate so informed.</P> <P>(g) <E T="03">Certification for appointment</E>—(1) <E T="03">Eligibility.</E> (i) A candidate will not be certified as eligible for appointment as a Foreign Service Officer Career Candidate of class FS-6 unless that candidate is at least 21 years of age and a citizen of the United States.</P> <P>(ii) Career Candidate appointments shall be made before the candidate's 60th birthday. Appointments by the United States Information Agency shall be made before the candidate's 58th birthday. The maximum age for appointment under this program is based on the requirement that all career candidates shall 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 eligiblity period to receive retirement benefits, prior to reaching the mandatory retirement age of 65 prescribed by the Act.</P> <P>(iii) A candidate may be certified as eligible for direct appointment to classes FS-5 or FS-4 if the Board of Examiners determines in accordance with published criteria that, in addition to meeting the requirements for class FS-6, the candidate has additional special experience and skills for which there is a need in the Foreign Service.</P> <P>(iv) Recommended candidates who meet the requirements of this section will be certified for appointment by the Board, in accordance with the needs of the foreign affairs agencies, in the order of their standing on their respective registers.</P> <P>(2) <E T="03">Functional rank-order registers.</E> The Board of Examiners may maintain separate rank-order registers for Career Candidates in administrative, consular, economic, and political functions of the Department of State; for Career Candidates in the information/cultural function of the United States Information Agency; for Career Candidates in the foreign commercial function of the Department of Commerce; and for functions of other participating foreign affairs agencies. Appointments from <PRTPAGE P="41"/>each functional register will be made in rank order according to the needs of the relevant agency.</P> <P>(3) <E T="03">Special programs.</E> (i) Qualified minority candidates who apply and qualify under the Department of State Affirmative Action Junior Officer Program (AAJOP) may be placed on a separate register and offered appointment from that register to meet Affirmative Action hiring goals established by the Secretary.</P> <P>(ii) Qualified minority candidates who apply and qualify under the Comprehensive Minority Recruitment and Training Program (COMRAT) of the United States Information Agency may be placed on a separate register and offered appointment from that register in accordance with the Affirmative Action Program established by that agency.</P> <P>(iii) Mustang and Upward Mobility candidates who are career employees of the Department of State or the United States Information Agency will be certified by the Board of Examiners for direct appointment on an individual basis after satisfactorily completing all aspects of the examination process.</P> <P>(4) <E T="03">Postponement of entrance on duty.</E> 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 required active regular or reserve military service (to a maximum of the limit of such required service), may be authorized by the Board.</P> <P>(5) <E T="03">Foreign language requirement.</E> 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 converted to career Foreign Service officer status unless, within a specified period of time, adequate proficiency in a foreign language is achieved. For limitations on promotion, see section 874, Volume 3, Foreign Affairs Manual.</P> <P>(h) <E T="03">Termination of eligibility</E>—(1) <E T="03">Time limit.</E> 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, or in required active regular or reserve military service (to a maximum of the limit of such required service), will not be counted as part of the 18-month eligibility period.</P> <P>(2) <E T="03">Extension.</E> The Board of Examiners may extend the eligibility period when such extension is, in its judgment, justified in the interest of the Foreign Service.</P> <P>(i) <E T="03">Travel expenses.</E> The travel and other personal expenses of candidates incurred in connection with the written and oral examinations will not be borne by the Government. However, the participating foreign affairs departments and agencies 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.</P> <SECAUTH>(Secs. 206(a) and 301(b), Foreign Service Act of 1980 (secs. 206(a) and 301(b), Pub. L. 96-465, 94 Stat. 2079 and 2083 (22 U.S.C. 3926 and 3941)))</SECAUTH> <CITA>[48 FR 13162, Mar. 30, 1983, as amended at 67 FR 46109, July 12, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 11.2</SECTNO> <SUBJECT>Written examination for appointment to class 7 or 8.</SUBJECT> <P>The Board of Examiners for the Foreign Service has established the following rules regarding the written examination:</P> <P>(a) <E T="03">When and where given.</E> The written examination will be given annually or semiannually, if required, in designated cities in the United States and at Foreign Service posts on dates established by the Board of Examiners for the Foreign Service. Applicants must indicate in their applications whether they are applying for the Department of State or for the U.S. Information Agency. Candidates who pass the written examination successfully may request a transfer of their applications to the other agency.</P> <P>(b) <E T="03">Designation to take written examination.</E> No person will be permitted to take a written examination for appointment as a Foreign Service officer <PRTPAGE P="42"/>or Foreign Service information officer who has not been specifically designated by the Board of Examiners to take that particular examination. Prior to each written examination, the Board will establish a closing date for the receipt of applications for designation to take the examination. No person will be designated for the examination who has not, as of that closing date, filed an application with the Board. To be designated for the written examination, a candidate, as of the date of the examination, must be a citizen of the United States and shall be at least 21 years of age, except that an applicant who has been awarded a bachelor's degree by a college or university, or has successfully completed the junior year at a college or university, may qualify if at least 20 years of age.</P> <P>(c) <E T="03">Content.</E> The written examination is designed to permit the Board to test the candidate's intelligence, breadth and quality of knowledge, and understanding. It will consist of three parts: (1) A general ability test, (2) an English expression test, and (3) a general background test.</P> <P>(d) <E T="03">Grading.</E> The several parts of the written examination are weighted in accordance with the rules established by the Board of Examiners.</P> <SECAUTH>(22 U.S.C. 1221 <E T="03">et seq.</E>)</SECAUTH> <CITA>[37 FR 19356, Sept. 20, 1972, as amended at 38 FR 13640, May 24, 1973]</CITA> </SECTION> <SECTION> <SECTNO>§ 11.3</SECTNO> <SUBJECT>Oral examination for appointment to class 7 or 8.</SUBJECT> <P>The Board of Examiners for the Foreign Service has established the following rules regarding the oral examination:</P> <P>(a) <E T="03">When and where given.</E> The oral examination will be given throughout the year at Washington and periodically in selected cities in the United States and, if circumstances permit, at selected Foreign Service posts.</P> <P>(b) <E T="03">Eligibility.</E> If a candidate's weighted average on the written examination is 70 or higher, the candidate will be eligible to take the oral examination. Candidates eligible for the oral examination will be given an opportunity and will be required to take the oral examination within 9 months after the date of the written examination. If a candidate fails to appear for the oral examination on an agreed date within the 9-month period, the candidacy will automatically terminate, except that time spent outside the United States and its territories, for reasons acceptable to the Board of Examiners, will not be counted against the 9-month period. The candidacy of anyone for whom the 9-month period is extended because of being abroad will be automatically terminated if the candidate fails to appear for the oral examination within 3 months after first returning to the United States: <E T="03">Provided,</E> That the candidacy of anyone who has not returned and been examined in the meantime will be canceled 2 years after the end of the month in which the written examination was held.</P> <P>(c) <E T="03">Examining process.</E> (1) The oral examination will be given by a panel of deputy examiners approved by the Board of Examiners from a roster of Foreign Service officers, officers from the Department of State, and other Government agencies, and qualified private citizens who by prior service as members of selection boards or through other appropriate activities have demonstrated special qualifications for this work. Service as deputy examiners shall be limited to a maximum of 5 years, unless a further period is specifically authorized by the Board.</P> <P>(2) The examination will be conducted in the light of all available information concerning the candidate and will be designed to determine the candidate's: (i) Competence to perform the work of a Foreign Service officer at home and abroad; (ii) potential for growth in the Service; and (iii) suitability to serve as a representative of the United States abroad. Panels examining candidates for the Department of State will be chaired by a Foreign Service officer of the Department. Panels examining candidates for the U.S. Information Agency will be chaired by a Foreign Service officer of that Agency. Determinations of duly constituted panels of deputy examiners are final, unless modified by specific action of the Board of Examiners for the Foreign Service.</P> <P>(3) Grading: Candidates appearing for the oral examination will be graded <PRTPAGE P="43"/>“recommended” or “not recommended.” If recommended, the panel will assign a grade which will be advisory to the Final Review Panel in determining the candidate's standing on the rank-order register of eligibles. The candidacy of anyone who is graded “not recommended” is automatically terminated and may not be considered again until the candidate has passed a new written examination.</P> <P>(4) An investigation shall be conducted of candidates who have been graded “recommended” by the oral examining panel to determine loyalty to the Government of the United States and attachment to the principles of the Constitution.</P> <SECAUTH>(22 U.S.C. 1221 <E T="03">et seq.</E>)</SECAUTH> <CITA>[37 FR 19356, Sept. 20, 1972, as amended at 38 FR 13640, May 24, 1973]</CITA> </SECTION> <SECTION> <SECTNO>§ 11.4</SECTNO> <SUBJECT>Medical examination for appointment to class 7 or 8.</SUBJECT> <P>The Board of Examiners for the Foreign Service has established the following rules regarding the medical examination of candidates.</P> <P>(a) A candidate graded “recommended” on the oral examination will be eligible for the physical examination.</P> <P>(b) The medical examination is designed to determine the candidate's physical fitness to perform the duties of a Foreign Service officer on a worldwide basis and to determine the presence of any physical, nervous, or mental disease or defect of such a nature as to make it unlikely that the candidate would become a satisfactory officer. The Executive Director of the Board of Examiners for the Foreign Service, with the concurrence of the Deputy Assistant Secretary for Medical Services, may make such exceptions to these physical requirements as are in the interest of the Service. All such exceptions shall be reported to the Board of Examiners for the Foreign Service at its next meeting.</P> <P>(c) The medical examination will be conducted by medical officers of the Armed Forces, the Public Health Service, the Department, accredited colleges and universities, or, with the approval of the Board of Examiners, by private physicians.</P> <P>(d) The Deputy Assistant Secretary for Medical Services will determine, on the basis of the report of the physician(s) who conducted the medical examination, whether the candidate has met the standards set forth in paragraph (b) of this section.</P> <SECAUTH>(22 U.S.C. 1221 <E T="03">et seq.</E>)</SECAUTH> <CITA>[37 FR 19356, Sept. 20, 1972]</CITA> </SECTION> <SECTION> <SECTNO>§ 11.5</SECTNO> <SUBJECT>Certification for appointment to class 7 or 8.</SUBJECT> <P>(a) Candidates will not be certified as eligible for appointment as Foreign Service officers of class 8 unless they are at least 21 years of age, is a citizen of the United States, and, if married, married to a citizen of the United States. A candidate may be certified as eligible for direct appointment to class 7 if, in addition to meeting these specifications, the candidate also has additional qualifications of experience, education, and age which the Board of Examiners for the Foreign Service currently defines as demonstrating ability and special skills for which there is a need in the Foreign Service. Recommended candidates who meet these requirements will be certified for appointment, in accordance with the needs of the Service, in the order of their standing on their respective registers.</P> <P>(b) Separate registers for Department of State candidates will be maintained for the administrative, consular, commercial/economic, and political functional specialties. Successful candidates for the U.S. Information Agency will have their names placed on a separate rank-order register and appointments will be made according to the needs of the Agency. Postponement of entrance on duty for required active military service, or required alternative service, civilian Government service abroad (to a maximum of 2 years of such civilian service), or Peace Corps volunteer service, will be authorized. A candidate may be certified for appointment to class 7 or 8 without first having passed an examination in a foreign language, but the appointment will be subject to the condition that the newly appointed officer may not receive more than one promotion unless, <PRTPAGE P="44"/>within a specified period of time, adequate proficiency in a foreign language is achieved.</P> <SECAUTH>(22 U.S.C. 1221 <E T="03">et seq.</E>)</SECAUTH> <CITA>[37 FR 19356, Sept. 20, 1972, as amended at 38 FR 13640, May 24, 1973]</CITA> </SECTION> <SECTION> <SECTNO>§ 11.6</SECTNO> <SUBJECT>Final Review Panel.</SUBJECT> <P>After the results of the medical examination and background investigation are received, the candidate's entire file will be reviewed by a Final Review Panel, consisting of two or more deputy examiners. Candidates who have been graded “recommended” by oral examining panels, who have passed their medical examination, and who, on the basis of investigation have been found to be loyal to the Government of the United States and personally suitable to represent it abroad, will have their names placed on a rank-order register for the functional specialty for which they have been qualified. Their standing on the register will be determined by the Final Review Panel after taking into account the grade assigned by the oral examining panel and any information developed subsequent to the oral examination concerning the applicant. The candidacy of anyone who is determined by the Final Review Panel to be unqualified for appointment shall be terminated and the candidate so informed.</P> <SECAUTH>(22 U.S.C. 1221 <E T="03">et seq.</E>)</SECAUTH> <CITA>[37 FR 19356, Sept. 20, 1972]</CITA> </SECTION> <SECTION> <SECTNO>§ 11.7</SECTNO> <SUBJECT>Termination of eligibility.</SUBJECT> <P>(a) Candidates who have qualified but have not been appointed because of lack of vacancies will be dropped from the rank-order register 30 months after the date of the written examination: <E T="03">Provided, however,</E> That reasonable time spent in civilian Government service abroad (to a maximum of 2 years such service), including service as a Peace Corps volunteer, in required active military service, or in required alternative service, subsequent to establishing eligibility for appointment will not be counted in the 30-month period.</P> <P>(b) The Chairman of the Board of Examiners may extend the eligibility period when such extension is, in his judgment, justified in the interests of the Service. The Chairman shall report the approved extensions to the Board of Examiners.</P> <SECAUTH>(22 U.S.C. 1221 <E T="03">et seq.</E>)</SECAUTH> <CITA>[37 FR 19356, Sept. 20, 1972]</CITA> </SECTION> <SECTION> <SECTNO>§ 11.8</SECTNO> <SUBJECT>Travel expenses of candidates.</SUBJECT> <P>The travel and other personal expenses of candidates incurred in connection with the written and oral examinations will not be borne by the Government, except that the Department may issue round-trip invitational travel orders to bring candidates to Washington at Government expense when it is determined that it is necessary in ascertaining a candidate's qualifications and adaptability for appointment.</P> <SECAUTH>(22 U.S.C. 1221 <E T="03">et seq.</E>)</SECAUTH> <CITA>[37 FR 19356, Sept. 20, 1972]</CITA> </SECTION> <SECTION> <SECTNO>§ 11.10</SECTNO> <RESERVED>Mid-level Foreign Service officer career candidate appointments. [Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 11.11</SECTNO> <SUBJECT>Mid-level Foreign Service officer career candidate appointments.</SUBJECT> <P>(a) <E T="03">General considerations</E>—(1) <E T="03">Authority.</E> Pursuant to sections 302 and 306 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. Such appointment is initially to career candidate status, with subsequent commissioning to career status governed by Volume 3 (Personnel), Foreign Affairs Manual section 570.</P> <P>(2) <E T="03">Veterans' preference.</E> Pursuant to section 301 of the Act, and notwithstanding the provisions of section 3320 of title 5 of the United States Code, the fact that an applicant is a veteran or disabled veteran, as defined in section 2108(3A), (3B), and (3C) of such title, shall be considered as an affirmative factor in the selection of candidates for appointment as Foreign Service officer career candidates (22 U.S.C. 1234).<PRTPAGE P="45"/> </P> <P>(3) <E T="03">Purpose and policy.</E> The Mid-Level Career Candidate Program of the Department of State supplements the Junior Foreign Service Officer Career Candidate Program to meet total requirements for Foreign Service officers at the mid-level. The purposes of the Mid-Level Program are: (i) To provide expanded opportunities and upward mobility for outstanding members of the Foreign Service with high potential who have been serving with particular success in other occupational categories; (ii) to permit the recruitment of a limited number of highly skilled and qualified personnel from outside the Foreign Service to meet specific needs which cannot be met from within the career Service; and (iii) to assist in meeting the Affirmative Action goals of the Department of State. This section governs appointments to generalist occupational categories (that is, administrative, consular, economic and political) at classes FS-3, 2, or 1. All appointments above FS-1, regardless of occupational category, are govern by § 11.30 (to be supplied). Appointments to Specialist occupational categories below the Senior Foreign Service are governed by § 11.20. Successful applicants under the Mid-Level Program will be appointed to career candidate status for a period not to exceed 5 years. Under precepts of the Commissioning and Tenure Board, career candidates may be granted tenure and converted to career Foreign Service officer status. Those who are not granted tenure prior to the expiration of their career candidate appointments will be separated from the Career Candidate Program no later than the expiration date of their appointments. As provided in section 310 of the Act, such separated candidates who had originally been employed by the Department of State with the consent of the head of their agency shall be entitled to reemployment rights in their former agency under section 3597 of title 5, United States Code.</P> <P>(4) <E T="03">Sources of candidates</E>—(i) <E T="03">Department.</E> The great majority of mid-level entrants will be career employees of the Department of State and the Foreign Service of proven ability who possess high potential for advancement. On the basis of the needs of the Foreign Service, the Department will approve the mid-level appointment of Foreign Service and Civil Service personnel on its rolls who apply, for whom the Bureau of Personnel issues a certificate of need, and who are found qualified by the Board of Examiners for the Foreign Service.</P> <P>(ii) <E T="03">Other Federal Government agencies.</E> Personnel with similar qualifications from other Federal Government agencies may also apply for the Mid-Level Program based on agreements between the Department and those agencies.</P> <P>(iii) <E T="03">Other.</E> Other candidates may be drawn from non-Government sources, including minority and women applicants for the Department's Mid-Level Affirmative Action Program.</P> <P>(b) <E T="03">Eligibility requirements</E>—(1) <E T="03">Citizenship.</E> Each person appointed as a Foreign Service mid-level career candidate must be a citizen of the United States.</P> <P>(2) <E T="03">Service.</E> (i) On the date of application, a candidate must have completed a minimum of 9 years of professional work experience, including at least 3 years of service in a position of responsibility in a Federal Government agency or agencies. For this purpose, a position of responsibility is defined as one in the Foreign Service at class FS-5, in the Civil Service at GS-9, or in the Armed Forces as first lieutenant or lieutenant junior grade, or higher. Academic studies, particularly those related to Foreign Service work, may be substituted for part of the required experience. The duties and responsibilities of the position occupied by the candidate must have been similar to or closely related to that of a Foreign Service officer in terms of knowledge, skills, abilities, and overseas work experience. In addition, a candidate must currently be in, or have been in, a grade or class comparable to FS-4 or higher.</P> <P>(ii) Candidates from outside the Department who at the time of application lack 3 years of service in a position of responsibility as defined in the preceding paragraph may, however, be considered if they are found to possess a combination of educational background, employment, experience, and skills needed by the Foreign Service at the mid-level.<PRTPAGE P="46"/> </P> <P>(3) <E T="03">Age.</E> All career candidate appointments shall be made before the candidate's 60th birthday. The maximum age for appointment under this 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.</P> <P>(4) <E T="03">Certification of need.</E> Before the Board of Examiners may process a candidacy, the Director General of the Foreign Service must certify that there is a continuing, long-term requirement, consistent with the projections of personnel flows and needs mandated by section 601(c)(2) of the Act, for a combination of professional work experience, educational background, skills, and capabilities possessed by the applicant which cannot reasonably be met from within the ranks of the career service, including by special training of career personnel and/or limited appointments pending completion of such training, if feasible. No applicant may be appointed in an occupational category or at a class level for which the Director General has not certified a need. Such certifications shall take into full account the latest published skills resources inventory and shall be based on a written assessment of the assignment and promotion effects on career members of the Foreign Service. A separate certification of need is not required for applicants under the Mid-Level Affirmative Action Program, as the hiring goals established by the Secretary constitute the certification for applicants under that Program. The exclusive employee representative will be advised promptly in writing on request of the number, nature, and dates of the certifications of need issued since the last request, including an affirmation that each such issuance has been in accordance with the requirements of this section.</P> <P>(c) <E T="03">Recruitment</E>—(1) <E T="03">From within the Department.</E> It is the Department's policy to encourage eligible personnel on its rolls to apply for appointment as Mid-Level Foreign Service officer career candidates including, in particular, the following categories: (i) Members of the Foreign Service whose performance has been consistently of a high caliber, and whose background, experience, and general qualifications indicate that they can compete favorably with Foreign Service officers; and (ii) Civil Service personnel who are serving in positions to which Foreign Service officers are normally assigned, who have superior records, and whose general qualifications indicate that they can compete favorably with Foreign Service officers.</P> <P>(2) <E T="03">Other.</E> The Department also encourages highly qualified applicants from other agencies of the Federal Government, and from outside the Federal Government, who meet the statutory and other eligibility requirements, to apply for the Mid-Level Program. Appointments from these sources for available openngs are made on a highly competitive basis to fill specific needs of the Foreign Service at the Mid-Level.</P> <P>(d) <E T="03">Methods of application</E>—(1) <E T="03">Forms.</E> Application is made for a Mid-Level Foreign Service officer career candidate appointment but not for a specific class. Applicants for mid-level entry must complete Standard Form 171, “Personnel Qualifications Statement,” and Form DSP-34, “Supplement to Application for Federal Employment,” and forward them, together with an autobiography not exceeding four typewritten pages in length, to the Board of Examiners for the Foreign Service for consideration.</P> <P>(2) <E T="03">Qualifications evaluation panel.</E> The Board of Examiners establishes a file for each applicant, placing in it all available documentation of value in evaluating the applicant's potential for service as a Foreign Service officer. A Qualifications Evaluation Panel of deputy examiners of the Board of Examiners reviews the file to determine whether the applicant meets the statutory and other eligibility requirements, to assess the applicant's skills relative to the needs of the Foreign Service, and to recommend whether the applicant should be examined for possible appointment under the Mid-Level Program.<PRTPAGE P="47"/> </P> <P>(e) <E T="03">Examination for mid-level appointment.</E> The submission of an application to the Board of Examiners does not in itself entitle an applicant to examination. The decision whether to proceed with an examination will be made by the Board of Examiners after a thorough review of the candidate's qualifications and a determination of eligibility for appointment following receipt of a certification of need for that candidate.</P> <P>(1) <E T="03">Purpose.</E> The mid-level examination is designed to enable the Board of Examiners to determine a candidate's aptitude for the work of the Foreign Service at the mid-level and fitness for a Foreign Service career.</P> <P>(2) <E T="03">Class.</E> In determining the Foreign Service officer class for which a candidate will be examined, the Board of Examiner's presumption will be for the class which is equivalent to the candidate's current salary level. In evaluating qualifications and in conducting examinations, the Board of Examiners will determine whether the candidate's qualifications compare favorably with Foreign Service officers at the candidate's current salary level. However, the Board of Examiners, at its discretion, may certify a candidate for appointment as a career candidate at a class other than that equivalent to current salary level in those instances where the Board determines that the candidate's qualifications clearly warrant such action.</P> <P>(3) <E T="03">Written examination.</E> A written examination will not normally be required of candidates for mid-level appointment. However, if the volume of applications for a given class or classes, or a particular functional specialty, is such as to make it infeasible to examine all candidates orally within a reasonable time, such candidates may be required to take an appropriate written examination prescribed by the Board of Examiners. Candidates whose score on the written examination is at or above the passing level set by the Board of Examiners will be eligible for selection for the oral examination.</P> <P>(4) <E T="03">Oral examination</E>—(i) <E T="03">Purpose.</E> The oral examination will be designed to enable the Board of Examiners to determine whether candidates are functionally qualified for work in the Foreign Service at the mid-level, whether they have the potential to advance in the Foreign Service, and whether they have the background and experience to make a contribution to the Foreign Service.</P> <P>(ii) <E T="03">When and where given.</E> The oral examination is individually scheduled throughout the year and is normally given in Washington, DC. At the discretion of the Board of Examiners, it may be given in other American cities, or at Foreign Service posts, selected by the Board.</P> <P>(iii) <E T="03">Examining panel.</E> Candidates recommended by a Qualifications Evaluation Panel for examination will be given an oral examination by a panel of deputy examiners of the Board of Examiners. That panels shall include at least one officer from the functional or professional specialty for which the candidate is being examined. Examining panels shall be chaired by a career officer of the Foreign Service. Determinations of duly constituted panels of deputy examiners are final unless modified by specific action of the Board of Examiners.</P> <P>(iv) <E T="03">Content.</E> The Examining Panel will question the candidate regarding the indicated functional or professional specialty; knowledge of American history, government, and other features of American culture; familiarity with current events and international affairs; and other matters relevant to the candidate's qualifications for appointment.</P> <P>(v) <E T="03">Grading.</E> Candidates taking the oral examination will be graded numerically 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 will be continued. The candidacy of anyone whose score is below the passing level will be terminated and may not be considered again until 1 year after that date.</P> <P>(5) <E T="03">Written essay.</E> Candidates who take the oral examination will be asked to write an essay during the examination day, on a topic related to Foreign Service work, to enable the Board of Examiners to measure the candidate's effectiveness of written expression.</P> <P>(6) <E T="03">Other exercises.</E> Candidates who take the oral examination also may be <PRTPAGE P="48"/>asked to complete other exercises during the examination day, to enable the Board of Examiners to measure additional aspects of performance related to Foreign Service work at the mid-level.</P> <P>(7) <E T="03">Background investigation.</E> Candidates who pass the oral examination will be eligible for selection for the background investigation. The background investigation shall be conducted to determine suitability for appointment to the Foreign Service.</P> <P>(8) <E T="03">Medical examination.</E> Candidates who pass the oral examination, and their dependents, will be eligible for selection for the medical examination. The medical examination shall be conducted to determine the candidate's physical fitness to perform the duties of a Foreign Service officer on a world-wide basis and, for candidates and dependents, to determine the presence of any physical, neurological, or mental condition of such a nature as to make it unlikely that they would be able to function on a world-wide basis.</P> <P>(9) <E T="03">Final review panel.</E> The entire file of candidates who pass the oral examination will be reviewed and graded by a Final Review Panel, consisting of two or more deputy examiners of the Board of Examiners, after the results of the background investigation and the medical examination are received. The Final Review Panel will take into account the grade assigned by the oral Examining Panel, as well as all other available information concerning the candidate, and decide whether or not to recommend the candidate for appointment. The candidate's file will then be submitted to the Board of Examiners for approval. If approved by the Board, the candidate's name will be entered on the rank-order register for the class and functional specialty for which the candidate has been found qualified. The candidacy of anyone who is not recommended for appointment by the Final Review Panel shall be terminated and the candidate so informed.</P> <P>(10) <E T="03">Foreign language requirement.</E> All candidates who pass the oral examination will be required to take a subsequent test to measure their fluency in foreign languages or their aptitude for learning them. A candidate may be appointed 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 converted to career Foreign Service officer status unless, within a specified period of time, adequate proficiency in a foreign language is achieved. For limitations on promotions see Volume 3 (Personnel), Foreign Affairs Manual, section 874.</P> <P>(11) <E T="03">Certification for appointment</E>—(i) <E T="03">Departmental employees.</E> A candidate who is a career employee of the Department, for whom a certification of need has been issued, will be certified by the Board of Examiners for appointment after satisfactorily completing all aspects of the examination process. The appointment certification will specify the class and salary for which the candidate has been found qualified.</P> <P>(ii) <E T="03">Others.</E> Other successful candidates will, after being approved by the board of Examiners, have their names placed on the rank-order register for the class and functional specialty for which they have been found qualified. A separate rank-order register may be established for candidates under the Mid-Level Affirmative Action Program. Appointments to available openings will be made from the registers in rank-order according to the needs of the Foreign Service.</P> <P>(12) <E T="03">Termination of eligibility.</E> 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. The Board of Examiners may extend the eligibility period when such extension is, in its judgment, justified in the interests of the Foreign Service.</P> <SECAUTH>(Secs. 206(a) and 301(b), Foreign Service Act of 1980 (secs. 206(a) and 301(b), Pub. L. 96-465, 94 Stat. 2079 and 2083 (22 U.S.C. 3926 and 3941)))</SECAUTH> <CITA>[48 FR 19702, May 2, 1983]</CITA> </SECTION> <SECTION> <SECTNO>§ 11.20</SECTNO> <SUBJECT>Foreign Service specialist career candidate appointments.</SUBJECT> <P>(a) <E T="03">General considerations.</E> (1) Section 303 of the Foreign Service Act of 1980 (hereinafter referred to as the Act) authorizes the appointment of members of the Service (other than Presidential appointments).<PRTPAGE P="49"/> </P> <P>(2) Section 306 of the Act provides that, before receiving a career appointment in the Foreign Service, an individual shall first serve under a limited appointment for a trial period of service as a career candidate.</P> <P>(3) This section governs the appointment by the Department of State of Foreign Service specialist career candidates to classes FS-1 and below. Specialist candidates comprise all candidates for career appointment in all occupational categories other than generalists (that is, administrative, consular, economic, political, and program direction), who are governed by the regulations respecting Foreign Service officer career candidates. The appointment of all Senior Foreign Service career candidates regardless of occupational category is governed by § 11.30 (to be supplied). Regulations governing trial service and tenuring of specialist candidates are found in Volume 3 (Personnel), Foreign Affairs Manual, section 580.</P> <P>(4) Veterans' preference shall apply to the selection and appointment of Foreign Service specialist career candidates.</P> <P>(b) <E T="03">Specialist career candidate appointments</E>—(1) <E T="03">Certification of need.</E> 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. Before an application can be processed, the Director General of the Foreign Service must certify that there is a need for the applicant as a career candidate in the specialist category at or above the proposed class of appointment. No applicant shall be appointed at a class level for which there is no certified need. This individual certification of need is not required for those specialist occupations which the Director General determines in advance to be shortage or continuous recruitment categories, and for which the Director General has certified the need for a specific number of appointments at given levels. Such appointments, including an appointment of an individual who is the employee of any agency, may not exceed 5 years in duration, and may not be renewed or extended beyond 5 years. A specialist candidate denied tenure under Volume 3 (Personnel), Foreign Affairs Manual, section 580, may not be reappointed as a career candidate in the same occupational category.</P> <P>(2) <E T="03">Eligibility.</E> 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. All career candidate appointments shall be made before the candidate's 60th 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.</P> <P>(3) <E T="03">Selection and initial screening.</E> Specialist career candidates will be selected on the basis of education, experience, suitability, performance potential, and physical fitness for world-wide service. Applicants normally will be given personal interviews and will be subject to such written, oral, physical, foreign language, and other examinations as may be prescribed by the Board of Examiners for the Foreign Service and administered by the Office of Recruitment, Examination, and Employment (PER/REE). The Board of Examiners will identify and/or approve the knowledge, skills, abilities, and personal characteristics required to perform the tasks and duties of Foreign Service specialists in each functional field. PER/REE will screen applications for appointment as Foreign Service specialist career candidates under approved criteria and select those who meet the requirements for further processing under these regulations.</P> <P>(4) <E T="03">Oral examination.</E> Candidates selected through the initial screening will be eligible for an oral examination unless they are candidates for appointment in occupational categories for which the oral examination may be waived by the Director General. This waiver normally will apply only to continuous-recruitment categories and to appointments below the FS-6 level, and <PRTPAGE P="50"/>where such waivers occur, a thorough oral interview will be conducted. The oral examination will be given by a panel of deputy examiners, at least one of whom will be a career Foreign Service specialist proficent in the functional field for which the candidate is being tested. The examination may include a writing sample. Candidates taking the oral examination will be graded 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 and may not be considered again for 1 year.</P> <P>(5) <E T="03">Background investigation.</E> Candidates who have passed the oral examination, and candidates who have passed the initial screening if the oral examination has been waived, will be eligible for selection for the background investigation to determine their suitability for appointment to the Foreign Service.</P> <P>(6) <E T="03">Medical examination.</E> Such candidates and their dependents will be eligible for selection for the medical examination. The medical examination shall be conducted to determine the candidate's physical fitness to perform the duties of a Foreign Service specialist on a world-wide basis and, for candidates and dependents, to determine the presence of any physical, neurological, or mental condition of such a nature as to make it unlikely that they would be able to function on a world-wide basis.</P> <P>(7) <E T="03">Final review panel.</E> After the results of the medical examination and background investigation have been received, a Final Review Panel, consisting of two or more deputy examiners of the Board of Examiners, or by another appropriate panel appointed for the purpose by the Director of PER/REE, will review and grade the candidate's entire file. Candidates approved by the Final Review Panel will have their names placed on a rank-order register for the functional specialty for which they are qualified. Candidates will remain eligible for appointment for 18 months from the date of placement on the rank-order register. The Board of Examiners may extend this eligibility period when such extension is, in its judgment, justified in the interests of the Foreign Service. The candidacy of anyone who is not recommended for appointment by the Final Review Board shall be terminated and the candidate so informed.</P> <P>(c) <E T="03">Limited non-career appointments.</E> Other Foreign Service specialist appointments may be made on a limited non-career basis. Before an application for a limited non-career appointment can be processed, the Director General of the Foreign Service must certify that there is a need for the applicant. Such limited specialists must serve overseas, and they will be subject to the same conditions as those outlined in these regulations for career candidates, with the exception that the maximum age of 59 does not apply to such appointments. However, because members of the Foreign Service generally are subject to the mandatory retirement age of 65 under section 812 of the Act, limited non-career appointments normally will not extend beyond the appointee's 65th birthday. Applicants for limited non-career appointments will be subject to the same screening, medical examination, background investigation, and final review process required of career candidates, but normally they will not be subject to a written or oral examination. Their appointments will normally be limited to the duration of the specific assignment for which they are to be hired, may not exceed 5 years in duration, and may not be renewed or extended beyond 5 years. Ordinarily, no limited non-career appointee will be reappointed until at least 1 year has elapsed since the expiration of a previous appointment. However, earlier reappointment may be granted in cases of special need, provided the exclusive employee representative is advised in advance and is afforded an opportunity to comment. Prior to the expiration of their limited appointments, if otherwise eligible, non-career appointees may compete for career candidate status by qualifying at that time for and taking the examinations required of career candidates. If successful, their names would be entered on the rank-<PRTPAGE P="51"/>order register for their functional specialty. If appointed as career candidates, the length of service under their previous limited non-career appointments may be counted as part of the trial period of service prescribed before a candidate can receive a career appointment.</P> <SECAUTH>(Secs. 206(a) and 301(b), Foreign Service Act of 1980 (secs. 206(a) and 301(b), Pub. L. 96-465, 94 Stat. 2079 and 2083 (22 U.S.C. 3926 and 3941)))</SECAUTH> <CITA>[48 FR 19704, May 2, 1983]</CITA> </SECTION> <SECTION> <SECTNO>§ 11.30</SECTNO> <SUBJECT>Senior Foreign Service officer career candidate and limited non-career appointments.</SUBJECT> <P>(a) <E T="03">General considerations.</E> (1) Career officers at the Senior Level normally shall be appointed as the result of promotion of Mid-Level career officers. Where the needs of the Foreign Service at the Senior Level cannot otherwise be met by this approach, limited appointments may by granted to applicants as Senior Career Candidates or as limited non-career appointees in accordance with these regulations. However, as required by section 305(b) of the Foreign Service Act of 1980 (hereinafter referred to as the Act), but qualified by section 305(b)(1) and (2) and section 2403(c) of the Act, the limited appointment of an individual in the Senior Foreign Service shall not cause the number of members of the Senior Foreign Service serving under limited appointments to exceed 5 percent of the total members of the Senior Foreign Service.</P> <P>(2) Successful applicants under the Senior Career Candidate Program will be appointed to Career Candidate status for a period not to exceed 5 years. Such limited Career Candidate appointments may not be renewed or extended beyond 5 years.</P> <P>(3) Under section 306 of the Act, Senior Career Candidates may be found qualified to become career members of the Senior Foreign Service. Those who are not found to be so qualified prior to the expiration of their limited appointments will be separated from the Career Candidate Program no later than the expiration date of their appointments. Separated candidates who originally were employees of a Federal department or agency, and who were appointed to the Senior Foreign Service with the consent of the head of that department or agency, will be entitled to reemployment rights in that department or agency in accordance with section 310 of the Act and section 3597 of title 5, United States Code.</P> <P>(4) The following regulations shall be utilized in conjunction with section 593, Volume 3, Foreign Affairs Manual (“Senior Foreign Service Officer Career Candidate Program”). (Also see Foreign Affairs Manual Circulars No. 8 [applicable to the Department of State only] and No. 9 [applicable to the Departments of State, Agriculture, and Commerce, the Agency for International Development, and the United States Information Agency], dated March 6, 1981.)</P> <P>(b) <E T="03">Senior Career Candidate appointments</E>—(1) <E T="03">Eligibility requirements.</E> Senior Career Candidates must meet the following eligibility requirements:</P> <P>(i) <E T="03">Citizenship.</E> Each person appointed as a Senior Career Candidate must be a citizen of the United States.</P> <P>(ii) <E T="03">Age.</E> All career candidate appointments shall be made before the candidate's 60th birthday. Appointments by the United States Information Agency shall be made before the candidate's 58th birthday. The maximum age for appointment under this program is based on the requirement that all career candidates shall 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.</P> <P>(iii) <E T="03">Service.</E> (A) On the date of application, an applicant must have completed a minimum of 15 years of professional work experience, including at least 5 years of service in a position of responsibility in a Federal Government agency or agencies or elsewhere equivalent to that of a Mid-Level Foreign Service officer (classes FS-1 through FS-3). The duties and responsibilities of the position occupied by the applicant must have been similar to or closely related to that of a Foreign Service officer in terms of knowledge, <PRTPAGE P="52"/>skills, abilities, and overseas work experience. In addition, an applicant must currently be in, or have been in, a position comparable to a Foreign Service officer of class 1 (FS-1), or higher.</P> <P>(B) Applicants from outside the Federal Government, and Federal employees who at the time of application lack the 15 years of professional work experience or the 5 years of service in a position of responsibility as defined in the preceding paragraph, may, however, be considered if they are found to possess a combination of educational background, professional work experience, and skills needed by the Foreign Service at the Senior Level in employment categories which normally are not staffed by promotion of Mid-Level career officers.</P> <P>(C) Non-career members of the Senior Foreign Service of a Federal Government department or agency also may apply for the Senior Career Candidate Program if they meet the eligibility requirements for the program.</P> <P>(iv) <E T="03">Certification of need.</E> Before an application can be processed, the Director of Personnel of the foreign affairs agency concerned must certify that there is a need for the applicant as a Senior Career Candidate based upon (A) the projections of personnel flows and needs mandated by section 601(c)(2) of the Act, and (B) a finding that the combination of educational background, professional work experience, and skills possessed by the applicant is not expected to be available in the immediate future in sufficient numbers within the Senior Foreign Service, including by promotion and/or special training of career personnel. This certification of need will be requested by the Board of Examiners for the Foreign Service from the appropriate foreign affairs agency Director of Personnel.</P> <P>(2) <E T="03">Application.</E> All applicants for the Senior Career Candidate Program must apply in writing through the prospective employing agency to the Board of Examiners for consideration. The applicant shall submit a completed Standard Form 171, “Personnel Qualifications Statement,” and Form DSP-34, “Supplement to Application for Federal Employment,” to the Board. In addition, the applicant shall submit a narrative statement, not exceeding four typewritten pages in length, describing the applicant's pertinent background and professional work experience, which includes a statement of the applicant's willingness and ability to accept the obligation of world-wide service. The Board may request additional written information from the applicant following receipt of the initial application.</P> <P>(3) <E T="03">Qualifications evaluation panel.</E> (i) The Board of Examiners will establish a file for each applicant, placing in it all available documentation of value in evaluating the applicant's potential for service as a Senior Career Candidate. For an applicant from within the Federal Government, this will include the personnel file from the employing department or agency.</P> <P>(ii) The complete file will be reviewed by a Qualifications Evaluation Panel of the Board of Examiners to determine whether the applicant meets the statutory and other eligibility requirements, to assess the applicant's skills under the certification of need issued by the prospective employing agency, and to recommend whether the applicant should be examined for possible appointment as a Senior Career Candidate. If the Qualifications Evaluation Panel decides that the applicant is not eligible for examination, the prospective employing agency shall be informed by the Board of the reasons for that decision.</P> <P>(4) <E T="03">Written examination.</E> The Board of Examiners normally will not require Senior Career Candidate applicants to undergo a written examination. However, the Board may, upon securing the agreement of the prospective employing agency, decide that such applicants should be required to take an appropriate written examination prescribed by the Board. If so, an applicant whose score on the written examination is at or above the passing level set by the Board will be eligible for selection for the oral examination.</P> <P>(5) <E T="03">Oral examination</E>—(i) <E T="03">Examining panel.</E> Applicants recommended by the Qualifications Evaluation Panel will be given an appropriate oral examination by a Panel of Senior Foreign Service deputy examiners of the Board of Examiners. The Oral Examining Panel <PRTPAGE P="53"/>shall be composed of at least two deputy examiners who are Senior Foreign Service career officers of the prospective employing agency, and at least one deputy examiner who is a Senior Foreign Service career officer from another foreign affairs agency operating under the Foreign Service Act. The Examining Panel shall be chaired by a deputy examiner who is a Senior Foreign Service career officer of the prospective employing agency. At least one of the Examining Panel members shall represent the functional or specialist field for which the applicant is being examined. Determinations of duly constituted panels of deputy examiners are final, unless modified by specific action of the Board of Examiners.</P> <P>(ii) <E T="03">Criteria.</E> (A) The Examining Panel will question the applicant regarding the indicated functional or specialist field and other matters relevant to the applicant's qualifications for appointment as a Senior Career Candidate. Prior to the oral examination, the applicant will be asked to write an essay, on a topic related to Foreign Service work, to enable the Examining Panel to judge the applicant's effectiveness of written expression. This essay requirement may be waived at the request of the head of the prospective employing agency, if, for example, the applicant is a career member of the Senior Executive Service.</P> <P>(B) The oral examination will be conducted under written criteria, established in consultation with the prospective employing agency and publicly announced by the Board of Examiners. The examination will seek to determine the ability of the applicant to meet the objective of section 101 of the Act, which provides for a Senior Foreign Service “characterized by strong policy formulation capabilities, outstanding executive leadership qualities, and highly developed functional, foreign language, and area expertise.”</P> <P>(iii) <E T="03">Grading.</E> Applicants taking the oral examination will be graded as “recommended,” or “not recommended” by the Examining Panel. Those graded as “recommended” also will be given a numerical score, under the standard Board of Examiners scoring criteria, for use by the Final Review Panel.</P> <P>(6) <E T="03">Background investigation.</E> Senior Career Candidate applicants recommended by the Examining Panel will be subject to the same background investigation as required for Junior and Mid-Level Foreign Service Officer Career Candidates. The background investigation shall be conducted to determine suitability for appointment to the Foreign Service.</P> <P>(7) <E T="03">Medical examination.</E> Senior Career Candidate applicants recommended by the Examining Panel, and their dependents, will be subject to the same medical examination as required for the Junior and Mid-Level Foreign Service Career Candidates. The medical examination shall be conducted to determine the applicant's physical fitness to perform the duties of a Foreign Service officer on a world-wide basis and, for applicants and dependents, to determine the presence of any physical, neurological, or mental condition of such a nature as to make it unlikely that they would be able to function on a world-wide basis. Applicants and/or dependents who do not meet the required medical standards may be given further consideration, as appropriate, under the procedures of the prospective employing agency.</P> <P>(8) <E T="03">Foreign language requirement.</E> Applicants recommended by the Examining Panel will be required to take a subsequent examination to measure their fluency in foreign languages, and/or their aptitude for learning them. Senior Career Candidates will be subject to the foreign language requirements established for their occupational category by their prospective employing agency. Senior Career Candidate applicants for the Foreign Commercial Service must demonstrate proficiency by examination in two foreign languages. United States Information Agency Senior Career Candidates, other than Senior Specialist Career Candidates, must demonstrate proficiency in at least one foreign language. Except for the Foreign Commercial Service and the United States Information Agency, an applicant may be appointed without first having passed an examination in a foreign language, <PRTPAGE P="54"/>but the appointed Senior Career Candidate may not be commissioned as a Career Senior Foreign Service officer unless adequate proficiency in a foreign language is achieved. This language requirement will not apply to candidates in occupational categories which, in the judgment of the prospective employing agency, do not require foreign language proficiency.</P> <P>(9) <E T="03">Final review panel.</E> (i) The entire file of an applicant recommended by the Examining Panel will be reviewed and graded by a Final Review Panel, after the results of the background investigation, medical examination and language examination are received. The Final Review Panel will decide whether or not to recommend the applicant for appointment, taking into account all of the available information concerning the applicant.</P> <P>(ii) The Final Review Panel shall consist of a chairperson who shall be a Deputy Examiner who is a career Senior Foreign Service officer of the prospective employing agency, and at least two other Deputy Examiners of the Board of Examiners. Of the Deputy Examiners serving on the Final Review Panel, the majority shall be career Senior Foreign Service officers of the prospective employing agency; and at least one shall be a career Senior Foreign Service officer of one of the other foreign affairs agencies operating under the Act.</P> <P>(10) <E T="03">Certification of appointment.</E> The file of an applicant recommended by the Final Review Panel will be submitted to the Board of Examiners for consideration and approval. An applicant found by the Board to meet the standards for appointment as a Senior Foreign Service Career Candidate shall be so certified to the Director of Personnel of the prospective employing agency.</P> <P>(c) <E T="03">Limited non-career appointments.</E> (1) Other Senior Foreign Service appointments may be made on a limited non-career basis for individuals who do not wish to compete for career appointments, but for whom a need can be certified by the Director of Personnel of the foreign affairs agency concerned. Such limited non-career senior appointees will be subject to the eligibility requirements set forth in § 11.30(b)(1) (i) and (iv). The maximum age set forth in § 11.30(b)(1)(ii) does not apply to such appointments. However, because Foreign Service members generally are subject to the mandatory retirement age of 65, under section 812 of the Act, limited non-career Senior appointments normally will not extend beyond the appointee's 65th birthday. Limited non-career appointees of the Department of Commerce and the United States Information Agency will not be subject to the language requirements of § 11.30(b)(8). Applicants for limited non-career senior appointments will be subject to the same background investigation and medical examination required of career candidates, but normally they will not be subject to a written or oral examination, or to approval by the Board of Examiners. Processing procedures for such applicants will be established by the Director of Personnel of the foreign affairs agency concerned. Their appointments normally will be limited to the duration of the specific assignments for which they are to be hired, may not exceed 5 years in duration, and may not be renewed or extended beyond 5 years.</P> <P>(2) Prior to the expiration of their limited non-career senior appointments, if they meet all the eligibility requirements set forth in § 11.30(b)(1), such individuals may elect to compete for career candidate status in the Senior Foreign Service by qualifying at that time for and taking the examinations required of career candidates. If appointed as career candidates, the length of service under their previous limited non-career appointments may be counted under the procedures of the employing agency as part of the trial period of service prescribed before a career candidate can receive a career appointment. The total period of limited appointment (non-career and career candidate) of such individuals may not exceed 5 years in duration.</P> <P>(3) Nothing in this section will limit the right of an individual who has previously served as a limited non-career senior appointee from subsequently applying for consideration as a new applicant and being appointed as a Senior Career Candidate after a limited non-career appointment has expired.<PRTPAGE P="55"/> </P> <P>(d) <E T="03">Reporting requirement.</E> The Director of Personnel of each foreign affairs agency shall report annually to the Director General of the Foreign Service, Department of State, the number and nature of the limited Senior Foreign Service appointments (non-career and career candidates) made by that agency under these regulations.</P> <SECAUTH>(Secs. 206(a) and 301(b), Foreign Service Act of 1980 (secs. 206(a) and 301(b), Pub. L. 96-465, 94 Stat. 2079 and 2083 (22 U.S.C. 3926 and 3941)))</SECAUTH> <CITA>[48 FR 38607, Aug. 25, 1983]</CITA> </SECTION> </PART> <PART> <EAR>Pt. 12</EAR> <HD SOURCE="HED">PART 12—COMPLAINTS AGAINST EMPLOYEES BY ALLEGED CREDITORS</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>12.1</SECTNO> <SUBJECT>No cognizance taken of complaint.</SUBJECT> <SECTNO>12.2</SECTNO> <SUBJECT>Claimants denied access to employees.</SUBJECT> </CONTENTS> <SECTION> <SECTNO>§ 12.1</SECTNO> <SUBJECT>No cognizance taken of complaint.</SUBJECT> <P>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.</P> <SECAUTH>(Sec. 4, 63 Stat. 111, as amended; 22 U.S.C. 2658)</SECAUTH> <CITA>[22 FR 10789, Dec. 27, 1957]</CITA> </SECTION> <SECTION> <SECTNO>§ 12.2</SECTNO> <SUBJECT>Claimants denied access to employees.</SUBJECT> <P>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.</P> <SECAUTH>(Sec. 4, 63 Stat. 111, as amended; 22 U.S.C. 2658)</SECAUTH> <CITA>[22 FR 10789, Dec. 27, 1957]</CITA> </SECTION> </PART> <PART> <EAR>Pt. 13</EAR> <HD SOURCE="HED">PART 13—PERSONNEL</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>13.1</SECTNO> <SUBJECT>Improper exaction of fees.</SUBJECT> <SECTNO>13.2</SECTNO> <SUBJECT>Embezzlement.</SUBJECT> <SECTNO>13.3</SECTNO> <SUBJECT>Liability for neglect of duty or for malfeasance generally; action on bond; penalty.</SUBJECT> <SECTNO>13.4</SECTNO> <SUBJECT>False certificate as to ownership of property.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>Sec. 302, 60 Stat. 1001; 22 U.S.C. 842.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>22 FR 10789, Dec. 27, 1957, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 13.1</SECTNO> <SUBJECT>Improper exaction of fees.</SUBJECT> <P>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. 1189).</P> <NOTE> <HD SOURCE="HED">Note:</HD> <P>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 § 22.4, <E T="03">Refund of fees</E> of this chapter.</P> </NOTE> <SECAUTH>(22 U.S.C. 2658 and 3926)</SECAUTH> <CITA>[22 FR 10789, Dec. 27, 1957, as amended at 49 FR 16989, Apr. 23, 1984]</CITA> </SECTION> <SECTION> <SECTNO>§ 13.2</SECTNO> <SUBJECT>Embezzlement.</SUBJECT> <P>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. 1198). 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 <PRTPAGE P="56"/>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. 1178 and 1179). Acceptance of such appointments is not ordinarily permitted under existing regulations. See § 92.81 of this chapter.</P> <SECAUTH>(22 U.S.C. 2658 and 3926)</SECAUTH> <CITA>[22 FR 10789, Dec. 27, 1957, as amended at 49 FR 16989, Apr. 23, 1984]</CITA> </SECTION> <SECTION> <SECTNO>§ 13.3</SECTNO> <SUBJECT>Liability for neglect of duty or for malfeasance generally; action on bond; penalty.</SUBJECT> <P>Whenever any consular officer willfully neglects or omits to perform seasonably any duty imposed upon him or her by law, or by any order or instruction made or given in pursuance of law, or is guilty of any willful malfeasance or abuse of power, or of any corrupt conduct in his or her office, he or she shall be liable to all persons injured by any such neglect, or omission, malfeasance, abuse, or corrupt conduct, for all damages, occasioned thereby; and for all such damages, he or she and his or her sureties upon his or her official bond shall be responsible thereon to the full amount of the penalty thereof to be sued in the name of the United States for the use of the person injured. Such suit, however, shall in no case prejudice, but shall be held in entire subordination to the interests, claims, and demands of the United States, as against any officer, under such bond, for every willful act of malfeasance or corrupt conduct in his or her office. If any consul neglects or omits to perform seasonably the duties imposed upon him or her by the laws regulating the shipment and discharge of seamen, or is guilty of any malversation or abuse of power, he or she shall be liable to any injured person for all damage occasioned thereby; and for all malversation and corrupt conduct in office, he or she shall be punishable by imprisonment for not more than five years and not less than one, and by a fine of not more than $10,000 and not less than $1,000 (22 U.S.C. 1199).</P> <SECAUTH>(22 U.S.C. 2658 and 3926)</SECAUTH> <CITA>[22 FR 10789, Dec. 27, 1957, as amended at 49 FR 16989, Apr. 23, 1984]</CITA> </SECTION> <SECTION> <SECTNO>§ 13.4</SECTNO> <SUBJECT>False certificate as to ownership of property.</SUBJECT> <P>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. 1200).</P> <SECAUTH>(22 U.S.C. 2658 and 3926)</SECAUTH> <CITA>[22 FR 10789, Dec. 27, 1957, as amended by Dept. Reg. 108.838, 49 FR 16989, Apr. 23, 1984]</CITA> </SECTION> </PART> <PART> <EAR>Pt. 16</EAR> <HD SOURCE="HED">PART 16—FOREIGN SERVICE GRIEVANCE SYSTEM</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>16.1</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>16.2</SECTNO> <SUBJECT>General provisions.</SUBJECT> <SECTNO>16.3</SECTNO> <SUBJECT>Access to records.</SUBJECT> <SECTNO>16.4</SECTNO> <SUBJECT>Time limits for grievance filing.</SUBJECT> <SECTNO>16.5</SECTNO> <SUBJECT>Relationship to other remedies.</SUBJECT> <SECTNO>16.6</SECTNO> <SUBJECT>Security clearances.</SUBJECT> <SECTNO>16.7</SECTNO> <SUBJECT>Agency procedures.</SUBJECT> <SECTNO>16.8</SECTNO> <SUBJECT>Agency review.</SUBJECT> <SECTNO>16.9</SECTNO> <SUBJECT>Records.</SUBJECT> <SECTNO>16.10</SECTNO> <SUBJECT>Foreign Service Grievance Board.</SUBJECT> <SECTNO>16.11</SECTNO> <SUBJECT>Grievance Board consideration of grievances.</SUBJECT> <SECTNO>16.12</SECTNO> <SUBJECT>Hearing.</SUBJECT> <SECTNO>16.13</SECTNO> <SUBJECT>Decisions.</SUBJECT> <SECTNO>16.14</SECTNO> <SUBJECT>Reconsideration of a grievance.</SUBJECT> <SECTNO>16.15</SECTNO> <SUBJECT>Judicial review.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>Sec. 4 of the Act of May 26, 1949, as amended (63 Stat. 111; 22 U.S.C. 2658); Pub. L. 94-141 (89 Stat. 765); 22 U.S.C. 1037; sec. 10 of E.O. 11636 (36 FR 24901).</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>41 FR 13912, Apr. 1, 1976, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 16.1</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>(a) <E T="03">Act</E> means the Foreign Service Act of 1946, as amended.</P> <P>(b) <E T="03">Grievant</E> 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.<PRTPAGE P="57"/> </P> <P>(c) <E T="03">Grievance</E> 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:</P> <P>(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;</P> <P>(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;</P> <P>(3) Allegedly wrongful disciplinary action against an employee constituting a reprimand or suspension from official duties;</P> <P>(4) Dissatisfaction with any matter subject to the control of the agency with respect to the grievant's physical working environment;</P> <P>(5) Alleged inaccuracy, error, or falsely prejudicial material in the grievant's official personnel file;</P> <P>(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;</P> <P>(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</P> <P>(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.</P> <P>(d) Grievance does not include the following:</P> <P>(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);</P> <P>(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);</P> <P>(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);</P> <P>(4) Any complaints or appeals for which a specific statutory appeals procedure exists (see appendix A for examples).</P> <FP>A grievance filed under these procedures may be based on matters for which there is a specific statutory appeals procedure which is applicable to the Foreign Service grievant. Should the jurisdiction of the Grievance Board over a specific grievance be placed into question on grounds that the basis of the grievance is not encompassed within the Board's authority (§ 16.1(d)(4) and Appendix A), the Board shall consult with the other statutory body concerned, transmitting the views of the parties concerned before determining whether it has jurisdiction.</FP> <P>(e) <E T="03">Employee organization</E> means any employee organization accorded recognition as the excusive employee representative pursuant to Executive Order 11636 dated December 17, 1971.</P> <P>(f) <E T="03">Grievance Board</E> or <E T="03">Board</E> means the full Foreign Service Grievance Board, or a Panel or member thereof, as appropriate.</P> <P>(g) <E T="03">Party</E> means the grievant or the Foreign Affairs agency having control <PRTPAGE P="58"/>over the act or condition forming the subject matter of the grievance.</P> <P>(h) <E T="03">Bureau</E> means equivalent organizational elements in State and USIA, and includes offices in AID.</P> <P>(i) <E T="03">Days</E> means calendar days.</P> </SECTION> <SECTION> <SECTNO>§ 16.2</SECTNO> <SUBJECT>General provisions.</SUBJECT> <P>(a) <E T="03">Statement of purpose.</E> 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.</P> <P>(b) <E T="03">Discussion of complaints.</E> (1) Every effort should be made to settle any employee complaint informally, promptly, and satisfactorily.</P> <P>(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.</P> <P>(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.</P> <P>(c) <E T="03">Guidance.</E> 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.</P> <P>(d) <E T="03">Freedom of action.</E> (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.</P> <P>(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.</P> <P>(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.</P> <P>(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).</P> </SECTION> <SECTION> <SECTNO>§ 16.3</SECTNO> <SUBJECT>Access to records.</SUBJECT> <P>(a) <E T="03">Grievance Board records.</E> The grievant and the grievant's representative shall have access to the record of proceedings, including the decision of the Board.</P> <P>(b) <E T="03">Agency records.</E> (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.<PRTPAGE P="59"/> </P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 16.4</SECTNO> <SUBJECT>Time limits for grievance filing.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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):</P> <P>(1) On the date of its dispatch by telegram, registered or certified mail, or receipted mail, in a diplomatic pouch;</P> <P>(2) On the date of its arrival at the appropriate office, if delivered by any other means.</P> </SECTION> <SECTION> <SECTNO>§ 16.5</SECTNO> <SUBJECT>Relationship to other remedies.</SUBJECT> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 16.6</SECTNO> <SUBJECT>Security clearances.</SUBJECT> <P>The agencies shall use their best endeavors to expedite security clearances whenever necessary to ensure a fair and prompt investigation and hearing.</P> </SECTION> <SECTION> <SECTNO>§ 16.7</SECTNO> <SUBJECT>Agency procedures.</SUBJECT> <P>(a) <E T="03">Initial consideration.</E> (1) Grievances shall be considered through the steps provided in this section before they are filed with the Grievance Board.</P> <P>(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 <PRTPAGE P="60"/>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.</P> <P>(b) <E T="03">Consideration by responsible officer.</E> (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.</P> <P>(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.</P> <P>(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.</P> <P>(c) <E T="03">Bureau or post review.</E> (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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 16.8</SECTNO> <SUBJECT>Agency review.</SUBJECT> <P>(a) <E T="03">Submission.</E> (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 <PRTPAGE P="61"/>has control of the act or condition which is the subject of the grievance.</P> <P>(2) <E T="03">Responsible officials.</E> 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).</P> <P>(3) <E T="03">Contents.</E> (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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 16.9</SECTNO> <SUBJECT>Records.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 16.10</SECTNO> <SUBJECT>Foreign Service Grievance Board.</SUBJECT> <P>(a) <E T="03">Establishment and composition.</E> 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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(f) Any vacancies shall be filled by the Secretary of State upon the nomination by the Board following the <PRTPAGE P="62"/>agreement of the agencies and the employee organization.</P> <P>(g) <E T="03">Compensation.</E> 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.</P> <P>(h) <E T="03">Removal.</E> 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.</P> <P>(i) <E T="03">Grievance Board procedures.</E> 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.</P> <P>(j) <E T="03">Board facilities and staff support.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 16.11</SECTNO> <SUBJECT>Grievance Board consideration of grievances.</SUBJECT> <P>(a) <E T="03">Filing of grievance.</E> 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.</P> <P>(b) <E T="03">Exhaustion of agency procedures.</E> 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.</P> <P>(c) <E T="03">Prescription of interim relief.</E> 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. <E T="03">Notwithstanding</E> 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 <PRTPAGE P="63"/>to which the officer or employee is assigned.</P> <P>(d) <E T="03">Inquiry into grievances.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 16.12</SECTNO> <SUBJECT>Hearing.</SUBJECT> <P>(a) <E T="03">Appearances and representation.</E> 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.</P> <P>(b) <E T="03">Conduct of hearing.</E> (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.</P> <P>(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.</P> <P>(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).</P> <P>(4) A verbatim transcript shall be made of any hearing and shall be part of the record of proceedings.</P> </SECTION> <SECTION> <SECTNO>§ 16.13</SECTNO> <SUBJECT>Decisions.</SUBJECT> <P>(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.</P> <P>(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:</P> <P>(1) To correct any official personnel record relating to the grievant which the Board finds to be inaccurate, erroneous, or falsely prejudicial;</P> <P>(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;</P> <P>(3) To retain in service and employee whose termination would be in consequence of the matter by which the employee is aggrieved;</P> <P>(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;</P> <P>(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;</P> <P>(6) To order that an employee be provided with facilities relating to the physical working environment which <PRTPAGE P="64"/>the employee has been denied arbitrarily, capriciously or in violation of applicable regulation.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 16.14</SECTNO> <SUBJECT>Reconsideration of a grievance.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 16.15</SECTNO> <SUBJECT>Judicial review.</SUBJECT> <P>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.</P> </SECTION> </PART> <PART> <EAR>Pt. 17</EAR> <HD SOURCE="HED">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)</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>17.1</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>17.2</SECTNO> <SUBJECT>Conditions for waiver of recovery of an overpayment.</SUBJECT> <SECTNO>17.3</SECTNO> <SUBJECT>Fault.</SUBJECT> <SECTNO>17.4</SECTNO> <SUBJECT>Equity and good conscience.</SUBJECT> <SECTNO>17.5</SECTNO> <SUBJECT>Financial hardship.</SUBJECT> <SECTNO>17.6</SECTNO> <SUBJECT>Ordinary and necessary living expenses.</SUBJECT> <SECTNO>17.7</SECTNO> <SUBJECT>Waiver precluded.</SUBJECT> <SECTNO>17.8</SECTNO> <SUBJECT>Burdens of proof.</SUBJECT> <SECTNO>17.9</SECTNO> <SUBJECT>Procedures.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>22 U.S.C. 4047(d); 22 U.S.C. 4071(b); 5 U.S.C. 8470(b); 5 CFR 845.301-07.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>71 FR 16229, Mar. 31, 2006, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 17.1</SECTNO> <SUBJECT>General.</SUBJECT> <P>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 <PRTPAGE P="65"/>overpayment. This part also provides the procedures for administrative determination of these rights and for appeals of negative determinations.</P> </SECTION> <SECTION> <SECTNO>§ 17.2</SECTNO> <SUBJECT>Conditions for waiver of recovery of an overpayment.</SUBJECT> <P>(a) <E T="03">Foreign Service Retirement and Disability System.</E> 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.</P> <P>(b) <E T="03">Foreign Service Pension System.</E> 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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 17.3</SECTNO> <SUBJECT>Fault.</SUBJECT> <P>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.</P> <P>(a) <E T="03">Considerations.</E> Pertinent considerations in finding fault are—</P> <P>(1) Whether payment resulted from the individual's incorrect but not necessarily fraudulent statement, which he/she should have known to be incorrect;</P> <P>(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</P> <P>(3) Whether he/she accepted a payment which he/she knew or should have known to be erroneous.</P> <P>(b) <E T="03">Mitigation factors.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 17.4</SECTNO> <SUBJECT>Equity and good conscience.</SUBJECT> <P>(a) <E T="03">Defined.</E> Recovery is against equity and good conscience when—</P> <P>(1) It would cause financial hardship to the person from whom it is sought;</P> <P>(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</P> <P>(3) Recovery could be unconscionable under the circumstances.</P> <P>(b) [Reserved]</P> </SECTION> <SECTION> <SECTNO>§ 17.5</SECTNO> <SUBJECT>Financial hardship.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(1) <E T="03">Considerations.</E> Some pertinent considerations in determining whether recovery would cause financial hardship are as follows:</P> <P>(i) The individual's financial ability to pay at the time collection is scheduled to be made.</P> <P>(ii) Income to other family member(s), if such member's ordinary and <PRTPAGE P="66"/>necessary living expenses are included in expenses reported by the individual.</P> <P>(c) <E T="03">Exemptions.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 17.6</SECTNO> <SUBJECT>Ordinary and necessary living expenses.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 17.7</SECTNO> <SUBJECT>Waiver precluded.</SUBJECT> <P>(a) Waiver of an overpayment cannot be granted when:</P> <P>(1) The overpayment was obtained by fraud; or</P> <P>(2) The overpayment was made to an estate.</P> <P>(b) [Reserved]</P> </SECTION> <SECTION> <SECTNO>§ 17.8</SECTNO> <SUBJECT>Burdens of proof.</SUBJECT> <P>(a) <E T="03">Burden of the Department of State.</E> The Bureau of Resource Management, Department of State, must establish by the preponderance of the evidence that an overpayment occurred.</P> <P>(b) <E T="03">Burden of individual.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 17.9</SECTNO> <SUBJECT>Procedures.</SUBJECT> <P>(a) <E T="03">Notice.</E> 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:</P> <P>(1) The amount of the overpayment;</P> <P>(2) The cause of the overpayment;</P> <P>(3) The intention of the Department to seek repayment of the overpayment,</P> <P>(4) The date by which payment should be made to avoid the imposition of interest, penalties, and administrative costs;</P> <P>(5) The applicable standards for the imposing of interest, penalties, and administrative costs;</P> <P>(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</P> <P>(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.</P> <P>(b) <E T="03">Administrative file.</E> 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.</P> <P>(c) <E T="03">Additional information.</E> 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 <PRTPAGE P="67"/>to the matters sought to be amplified, clarified, or verified.</P> <P>(d) <E T="03">Decision and right of appeal.</E> 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.</P> </SECTION> </PART> <PART> <EAR>Pt. 18</EAR> <HD SOURCE="HED">PART 18—REGULATIONS CONCERNING POST EMPLOYMENT CONFLICT OF INTEREST</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—General Provisions</HD> <SECHD>Sec.</SECHD> <SECTNO>18.1</SECTNO> <SUBJECT>Scope.</SUBJECT> <SECTNO>18.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>18.3</SECTNO> <SUBJECT>Director General.</SUBJECT> <SECTNO>18.4</SECTNO> <SUBJECT>Records.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Applicable Rules</HD> <SECTNO>18.5</SECTNO> <SUBJECT>Interpretative standards; advisory opinions.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Administrative Enforcement Proceedings</HD> <SECTNO>18.6</SECTNO> <SUBJECT>Authority to prohibit appearances.</SUBJECT> <SECTNO>18.7</SECTNO> <SUBJECT>Report of violation by a former employee.</SUBJECT> <SECTNO>18.8</SECTNO> <SUBJECT>Institution of proceeding.</SUBJECT> <SECTNO>18.9</SECTNO> <SUBJECT>Contents of complaint.</SUBJECT> <SECTNO>18.10</SECTNO> <SUBJECT>Service of complaint and other papers.</SUBJECT> <SECTNO>18.11</SECTNO> <SUBJECT>Answer.</SUBJECT> <SECTNO>18.12</SECTNO> <SUBJECT>Motions and requests.</SUBJECT> <SECTNO>18.13</SECTNO> <SUBJECT>Representation.</SUBJECT> <SECTNO>18.14</SECTNO> <SUBJECT>Hearing examiner.</SUBJECT> <SECTNO>18.15</SECTNO> <SUBJECT>Hearings.</SUBJECT> <SECTNO>18.16</SECTNO> <SUBJECT>Evidence.</SUBJECT> <SECTNO>18.17</SECTNO> <SUBJECT>Depositions.</SUBJECT> <SECTNO>18.18</SECTNO> <SUBJECT>Proposed findings and conclusions.</SUBJECT> <SECTNO>18.19</SECTNO> <SUBJECT>Decision of the hearing examiner.</SUBJECT> <SECTNO>18.20</SECTNO> <SUBJECT>Appeal to the Board of Appellate Review.</SUBJECT> <SECTNO>18.21</SECTNO> <SUBJECT>Decision of the Board of Appellate Review.</SUBJECT> <SECTNO>18.22</SECTNO> <SUBJECT>Notice of disciplinary action.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>18 U.S.C. 207, as amended, 92 Stat. 1864.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>46 FR 2608, Jan. 12, 1981, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—General Provisions</HD> <SECTION> <SECTNO>§ 18.1</SECTNO> <SUBJECT>Scope.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 18.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>For the purpose of this part—</P> <P>(a) The term <E T="03">Department</E> means the Department of State and includes the Foreign Service.</P> <P>(b) The term <E T="03">Director General</E> means the Director General of the Foreign Service and Director of Personnel.</P> <P>(c) The term <E T="03">practice</E> 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).</P> </SECTION> <SECTION> <SECTNO>§ 18.3</SECTNO> <SUBJECT>Director General.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 18.4</SECTNO> <SUBJECT>Records.</SUBJECT> <P>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.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Applicable Rules</HD> <SECTION> <SECTNO>§ 18.5</SECTNO> <SUBJECT>Interpretative standards; advisory opinions.</SUBJECT> <P>(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 <PRTPAGE P="68"/>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.</P> <P>(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.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Administrative Enforcement Proceedings</HD> <SECTION> <SECTNO>§ 18.6</SECTNO> <SUBJECT>Authority to prohibit appearances.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 18.7</SECTNO> <SUBJECT>Report of violation by a former employee.</SUBJECT> <P>(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.</P> <P>(b) The Director General shall coordinate proceedings under this part with the Department of Justice in cases where it initiates criminal prosecution.</P> </SECTION> <SECTION> <SECTNO>§ 18.8</SECTNO> <SUBJECT>Institution of proceeding.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 18.9</SECTNO> <SUBJECT>Contents of complaint.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 18.10</SECTNO> <SUBJECT>Service of complaint and other papers.</SUBJECT> <P>(a) <E T="03">Complaint.</E> 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.</P> <P>(b) <E T="03">Service of papers other than complaint.</E> 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 <PRTPAGE P="69"/>agent of record. Such mailing shall constitute complete service.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 18.11</SECTNO> <SUBJECT>Answer.</SUBJECT> <P>(a) <E T="03">Filing.</E> 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.</P> <P>(b) <E T="03">Contents.</E> 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.</P> <P>(c) <E T="03">Failure to deny or answer allegations in the complaint.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 18.12</SECTNO> <SUBJECT>Motions and requests.</SUBJECT> <P>Motions and requests, including requests to intervene, may be filed with the Director General.</P> </SECTION> <SECTION> <SECTNO>§ 18.13</SECTNO> <SUBJECT>Representation.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 18.14</SECTNO> <SUBJECT>Hearing examiner.</SUBJECT> <P>(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.</P> <P>(b) <E T="03">Authorities.</E> Among other powers, the hearing examiner shall have authority, in connection with any proceeding assigned or referred to him/her, to do the following:</P> <P>(1) Take evidence under appropriate formalities;</P> <P>(2) Make rulings upon motions and requests;</P> <P>(3) Determine the time and place of hearing and regulate its course and conduct;</P> <P>(4) Adopt rules of procedure and modify the same from time to time as occasion requires for the orderly disposition of proceedings;</P> <P>(5) Rule upon offers of proof, receive relevant evidence, and examine witnesses;</P> <P>(6) Take or authorize the taking of depositions;</P> <P>(7) Receive and consider oral or written argument on facts or law;</P> <P>(8) Hold or provide for the holding of conferences for the settlement or simplification of the issues by consent of the parties;</P> <P>(9) Perform such acts and take such measures as are necessary or appropriate to the efficient conduct of any proceeding; and</P> <P>(10) Make initial decisions.</P> </SECTION> <SECTION> <SECTNO>§ 18.15</SECTNO> <SUBJECT>Hearings.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 18.16</SECTNO> <SUBJECT>Evidence.</SUBJECT> <P>The rules of evidence prevailing in courts of law and equity are not controlling in hearings under this part. <PRTPAGE P="70"/>However, the hearing examiner shall exclude evidence which is irrelevant, immaterial, or unduly repetitious.</P> </SECTION> <SECTION> <SECTNO>§ 18.17</SECTNO> <SUBJECT>Depositions.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 18.18</SECTNO> <SUBJECT>Proposed findings and conclusions.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 18.19</SECTNO> <SUBJECT>Decision of the hearing examiner.</SUBJECT> <P>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</P> <P>(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</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 18.20</SECTNO> <SUBJECT>Appeal to the Board of Appellate Review.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 18.21</SECTNO> <SUBJECT>Decision of the Board of Appellate Review.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 18.22</SECTNO> <SUBJECT>Notice of disciplinary action.</SUBJECT> <P>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 <PRTPAGE P="71"/>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.</P> </SECTION> </SUBPART> </PART> <PART> <EAR>Pt. 19</EAR> <HD SOURCE="HED">PART 19—BENEFITS FOR SPOUSES AND FORMER SPOUSES OF PARTICIPANTS IN THE FOREIGN SERVICE RETIREMENT AND DISABILITY SYSTEM</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>19.1</SECTNO> <SUBJECT>Authorities.</SUBJECT> <SECTNO>19.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>19.3</SECTNO> <SUBJECT>Participants.</SUBJECT> <SECTNO>19.4</SECTNO> <SUBJECT>Special rules for computing creditable service for purposes of payments to former spouses.</SUBJECT> <SECTNO>19.5</SECTNO> <SUBJECT>Required notifications to department respecting spouses and former spouses.</SUBJECT> <SECTNO>19.5-1</SECTNO> <SUBJECT>Notification from participant or annuitant.</SUBJECT> <SECTNO>19.5-2</SECTNO> <SUBJECT>Notification to Department from former spouses.</SUBJECT> <SECTNO>19.5-3</SECTNO> <SUBJECT>Residence of spouse during service at unhealthful post.</SUBJECT> <SECTNO>19.6</SECTNO> <SUBJECT>Court orders and divorce decrees.</SUBJECT> <SECTNO>19.6-1</SECTNO> <SUBJECT>Orders by a court.</SUBJECT> <SECTNO>19.6-2</SECTNO> <SUBJECT>Qualifying court order.</SUBJECT> <SECTNO>19.6-3</SECTNO> <SUBJECT>Application for payment.</SUBJECT> <SECTNO>19.6-4</SECTNO> <SUBJECT>Date of court orders.</SUBJECT> <SECTNO>19.6-5</SECTNO> <SUBJECT>Preliminary review.</SUBJECT> <SECTNO>19.6-6</SECTNO> <SUBJECT>Notification.</SUBJECT> <SECTNO>19.6-7</SECTNO> <SUBJECT>Decision.</SUBJECT> <SECTNO>19.6-8</SECTNO> <SUBJECT>Allotment to beneficiary.</SUBJECT> <SECTNO>19.6-9</SECTNO> <SUBJECT>Limitations.</SUBJECT> <SECTNO>19.6-10</SECTNO> <SUBJECT>Liability.</SUBJECT> <SECTNO>19.7</SECTNO> <SUBJECT>Spousal agreements.</SUBJECT> <SECTNO>19.7-1</SECTNO> <SUBJECT>Purpose.</SUBJECT> <SECTNO>19.7-2</SECTNO> <SUBJECT>Agreement with spouse.</SUBJECT> <SECTNO>19.7-3</SECTNO> <SUBJECT>Agreement with former spouse.</SUBJECT> <SECTNO>19.7-4</SECTNO> <SUBJECT>Form of agreement.</SUBJECT> <SECTNO>19.7-5</SECTNO> <SUBJECT>Limitations.</SUBJECT> <SECTNO>19.7-6</SECTNO> <SUBJECT>Duration and precedence of spousal agreements.</SUBJECT> <SECTNO>19.8</SECTNO> <SUBJECT>Obligations of members.</SUBJECT> <SECTNO>19.9</SECTNO> <SUBJECT>Pension benefits for former spouses.</SUBJECT> <SECTNO>19.9-1</SECTNO> <SUBJECT>Entitlement.</SUBJECT> <SECTNO>19.9-2</SECTNO> <SUBJECT>Commencement and termination.</SUBJECT> <SECTNO>19.9-3</SECTNO> <SUBJECT>Computation and payment of pension to former spouse.</SUBJECT> <SECTNO>19.9-4</SECTNO> <SUBJECT>Effect on annuitant.</SUBJECT> <SECTNO>19.10</SECTNO> <SUBJECT>Types of annuities to members.</SUBJECT> <SECTNO>19.10-1</SECTNO> <SUBJECT>Full annuity.</SUBJECT> <SECTNO>19.10-2</SECTNO> <SUBJECT>Reduced annuity with regular survivor annuity to spouse or former spouse.</SUBJECT> <SECTNO>19.10-3</SECTNO> <SUBJECT>Marriage after retirement.</SUBJECT> <SECTNO>19.10-4</SECTNO> <SUBJECT>Death or divorce of a spouse and remarriage after retirement.</SUBJECT> <SECTNO>19.10-5</SECTNO> <SUBJECT>Reduced annuity with additional survivor annuity to spouse of former spouse.</SUBJECT> <SECTNO>19.10-6</SECTNO> <SUBJECT>Benefits for recall service.</SUBJECT> <SECTNO>19.11</SECTNO> <SUBJECT>Survivor benefits.</SUBJECT> <SECTNO>19.11-1</SECTNO> <SUBJECT>Kinds of survivor benefits.</SUBJECT> <SECTNO>19.11-2</SECTNO> <SUBJECT>Regular survivor annuity for a former spouse.</SUBJECT> <SECTNO>19.11-3</SECTNO> <SUBJECT>Regular survivor annuity for a spouse.</SUBJECT> <SECTNO>19.11-4</SECTNO> <SUBJECT>Procedure in event a spouse or former spouse is missing.</SUBJECT> <SECTNO>19.11-5</SECTNO> <SUBJECT>Commencement, termination and adjustment of annuities.</SUBJECT> <SECTNO>19.11-6</SECTNO> <SUBJECT>Death during active duty.</SUBJECT> <SECTNO>19.11-7</SECTNO> <SUBJECT>Annuity payable to surviving child or children.</SUBJECT> <SECTNO>19.11-8</SECTNO> <SUBJECT>Required elections between survivor benefits.</SUBJECT> <SECTNO>19.12</SECTNO> <SUBJECT>Employment in a Government agency.</SUBJECT> <SECTNO>19.13</SECTNO> <SUBJECT>Lump-sum payment.</SUBJECT> <SECTNO>19.13-1</SECTNO> <SUBJECT>Lump-sum credit.</SUBJECT> <SECTNO>19.13-2</SECTNO> <SUBJECT>Share payable to a former spouse.</SUBJECT> <SECTNO>19.13-3</SECTNO> <SUBJECT>Payment after death of principal.</SUBJECT> <SECTNO>19.14</SECTNO> <SUBJECT>Waiver of annuity.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>Secs. 206 and 801 of Foreign Service Act of 1980 (94 Stat. 2079, 2102); Sec. 4 of Act of May 26, 1949 (22 U.S.C. 2658).</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>46 FR 12958, Feb. 19, 1981, unless otherwise noted. Redesignated at 46 FR 18970, Mar. 27, 1981.</P> </SOURCE> <SECTION> <SECTNO>§ 19.1</SECTNO> <SUBJECT>Authorities.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 19.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>(a) <E T="03">Agencies</E> 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).</P> <P>(b) <E T="03">Annuitant</E> 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.</P> <P>(c) <E T="03">Basic salary</E> 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, <PRTPAGE P="72"/>night, Sunday and holiday work, allowances, post and special differentials, and chargé pay.</P> <P>(d) <E T="03">Chief of Mission</E> 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.</P> <P>(e) <E T="03">Child</E> 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:</P> <P>(1) An adopted child;</P> <P>(2) A stepchild or recognized natural child who received more than one-half support from the participant; and</P> <P>(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.</P> <P>(f) <E T="03">Court</E> means any court of any State or of the District of Columbia.</P> <P>(g) <E T="03">Court Order</E> means any court decree of divorce or annulment, or any court approved property settlement agreement incident to any court decree of divorce or annulment.</P> <P>(h) <E T="03">Department</E> means the Department of State.</P> <P>(i) <E T="03">Divorce</E> means the dissolution of a marriage by a final decree of divorce or annulment.</P> <P>(j) <E T="03">Expressly provided for</E> 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.</P> <P>(k) <E T="03">Former spouse</E> <SU>1</SU> <FTREF/> means a former wife or husband of a participant or former participant who was married to such participant for not less than ten years during periods of service by that participant which are creditable under section 816 of the Act provided the participant was making contributions to the Fund under section 805 of the Act during some portion of such service, and provided the divorce occurred after February 15, 1981. For this purpose, a former spouse shall not be considered as married to a participant for periods assumed to be creditable under section 808 of the Act in the case of a disability annuity or section 809 of the Act in the case of a death in service. A former spouse will be considered married to a participant for any extra period of creditable service provided under section 817 of the Act for service at an unhealthful post during which the former spouse resided with the participant. See § 19.5-3 for procedures to determine this extra period of marriage.</P> <FTNT> <P> <SU>1</SU> Note: Section 804(6) of the Act defines “former spouse” with respect to duration of marriage as being married to a participant “for not less than 10 years during periods of service by that participant which are creditable under section 816.” The Department interprets this as necessarily implying that the marriage must have covered a period of at least one day while the member of the Foreign Service was a participant in the System.</P> </FTNT> <P>(l) <E T="03">Fund</E> means the Foreign Service Retirement and Disability Fund.</P> <P>(m) <E T="03">M/MED</E> means the Department's Office of Medical Services.</P> <P>(n) <E T="03">Military and naval service</E> means honorable active service:</P> <P>(1) In the Armed Forces of the United States;</P> <P>(2) In the Regular or Reserve Corps of the Public Health Service after June 30, 1960; or</P> <P>(3) As commissioned officer of the National Oceanic and Atmospheric Administration or predecessor organization after June 30, 1961.</P> <FP>However, this definition does not include service in the National Guard, except when ordered to active duty in the service of the United States.</FP> <P>(o) <E T="03">Participant</E> means a person as described in § 19.3.<PRTPAGE P="73"/> </P> <P>(p) <E T="03">Previous spouse</E> means any person formerly married to a principal, whether or not such person qualifies as a former spouse under paragraph (k) of this section.</P> <P>(q) <E T="03">Principal</E> 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.</P> <P>(r) <E T="03">PER/ER/RET</E> means the Department's Retirement Division in the Bureau of Personnel.</P> <P>(s) <E T="03">Pro rata share</E> 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.</P> <P>(t) <E T="03">Spousal agreement</E> means any written agreement between a participant or former participant, and the participant's spouse or former spouse.</P> <P>(u) <E T="03">Student</E> 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.</P> <P>(v) <E T="03">Surviving spouse</E> 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.</P> <P>(w) <E T="03">System</E> means the Foreign Service Retirement and Disability System.</P> <CITA>[46 FR 12958, Feb. 19, 1981. Redesignated and amended at 46 FR 18970, Mar. 27, 1981]</CITA> </SECTION> <SECTION> <SECTNO>§ 19.3</SECTNO> <SUBJECT>Participants.</SUBJECT> <P>The following persons are participants in the System:</P> <P>(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;</P> <P>(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;</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 19.4</SECTNO> <SUBJECT>Special rules for computing creditable service for purposes of payments to former spouses.</SUBJECT> <P>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—</P> <P>(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 <PRTPAGE P="74"/>principal elects to make payments to the Fund for this service;</P> <P>(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</P> <P>(c) All creditable service including service in excess of 35 years.</P> <FP>The period covered by the credit for unused sick leave is not creditable for this purpose.</FP> </SECTION> <SECTION> <SECTNO>§ 19.5</SECTNO> <SUBJECT>Required notifications to Department respecting spouses and former spouses.</SUBJECT> </SECTION> <SECTION> <SECTNO>§ 19.5-1</SECTNO> <SUBJECT>Notification from participant or annuitant.</SUBJECT> <P>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, <E T="03">i.e.</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.</P> </SECTION> <SECTION> <SECTNO>§ 19.5-2</SECTNO> <SUBJECT>Notification to Department from former spouses.</SUBJECT> <P>A former spouse is obligated to notify the Department of the following on a timely basis:</P> <P>(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;</P> <P>(b) Any change in address; and</P> <P>(c) Any remarriage.</P> <FP>Notices shall be sent to the Department of State, Attention PER/ER/RET, Washington, DC 20520.</FP> </SECTION> <SECTION> <SECTNO>§ 19.5-3</SECTNO> <SUBJECT>Residence of spouse during service at unhealthful post.</SUBJECT> <P>(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 <E T="03">does not</E> receive post differential and <E T="03">does</E> 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.</P> <P>(b) Whenever a participant retires or becomes divorced, or whenever a former participant becomes divorced <PRTPAGE P="75"/>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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 19.6</SECTNO> <SUBJECT>Court orders and divorce decrees.</SUBJECT> </SECTION> <SECTION> <SECTNO>§ 19.6-1</SECTNO> <SUBJECT>Orders by a court.</SUBJECT> <P>(a) A court may—</P> <P>(1) Fix the amount of any pension to a former spouse under § 19.9, or order that none be paid;</P> <P>(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;</P> <P>(3) Order provision of an additional survivor annuity for a spouse or former spouse under § 19.10-5;</P> <P>(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;</P> <P>(5) Fix the amount of any lump-sum payable to a former spouse under § 19.13 or order that none be paid;</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 19.6-2</SECTNO> <SUBJECT>Qualifying court order.</SUBJECT> <P>(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—</P> <P>(1) Be consistent with the terms of the Act and applicable regulations;</P> <P>(2) Not direct payment of an amount in excess of the maximum amount authorized to be paid by the relevant regulation;</P> <P>(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;</P> <P>(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;</P> <P>(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</P> <P>(6) Not be in conflict with any previously issued court order which remains valid.<PRTPAGE P="76"/> </P> <P>(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:</P> <P>(1) Owed by the individual to the United States;</P> <P>(2) Deducted for health benefits premiums pursuant to section 8906 of Title 5, United States Code;</P> <P>(3) Deducted for life insurance premiums under the Government Life Insurance Program;</P> <P>(4) Owed due to overpayment of annuity;</P> <P>(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.</P> <CITA>[46 FR 12958, Feb. 19, 1981. Redesignated and amended at 46 FR 18970, Mar. 27, 1981]</CITA> </SECTION> <SECTION> <SECTNO>§ 19.6-3</SECTNO> <SUBJECT>Application for payment.</SUBJECT> <P>(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—</P> <P>(1) The full name, date of birth, current address and current marital status of the beneficiary;</P> <P>(2) Full name and date of birth of the participant or former participant and his/her date of birth or other identifying information;</P> <P>(3) Relationship to the beneficiary, and if a spouse or former spouse, date of marriage to and/or divorce from the participant;</P> <P>(4) A statement that the court order has not been amended, superseded, or set aside;</P> <FP>The original of the court order or a recently certified copy must be enclosed with the application, or a statement appended that such a copy has been sent to the Department by other means.</FP> <P>(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—</P> <P>(1) The condition has not occured;</P> <P>(2) He/she will notify the Department (PER/ER/RET) within 15 calendar days of the occurrence of the condition subsequent; and</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 19.6-4</SECTNO> <SUBJECT>Date of court orders.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <PRTPAGE P="77"/> <SECTNO>§ 19.6-5</SECTNO> <SUBJECT>Preliminary review.</SUBJECT> <P>(a) Upon receipt of an application for payment under § 19.6-3, PER/ER/RET will determine whether—</P> <P>(1) The application is complete;</P> <P>(2) The applicant is an eligible beneficiary under this chapter; and</P> <P>(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.</P> <P>(b) Upon receipt of a certified copy of a final decree of divorce, PER/ER/RET will determine whether—</P> <P>(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:</P> <P>(i)(A) Neither party was domiciled within the court's jurisdiction, and</P> <P>(B) The party denying recognition did not participate in the proceedings, or</P> <P>(ii) The party denying recognition was not afforded notice of the proceedings (actual or constructive);</P> <P>(2) A related court order has been submitted by either party; and</P> <P>(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.</P> <CITA>[46 FR 12958, Feb. 19, 1981. Redesignated and amended at 46 FR 18970, Mar. 27, 1981]</CITA> </SECTION> <SECTION> <SECTNO>§ 19.6-6</SECTNO> <SUBJECT>Notification.</SUBJECT> <P>(a) <E T="03">Notification to a principal.</E> Whenever PER/ER/RET receives from a former spouse or other eligible beneficiary—</P> <P>(1) a court order which it deems qualified that requires payment to the beneficiary; or</P> <P>(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.</P> <FP>PER/ER/RET will provide the former spouse or other beneficiary the same information, stating the exact amount that will be payable to the beneficiary and explaining how that amount was calculated.</FP> <P>(b) <E T="03">Notification to a former spouse.</E> 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.</P> <FP>PER/ER/RET will provide the same information to the principal and will explain the effect any payment to a <PRTPAGE P="78"/>former spouse will have on the principal's retirement benefit.</FP> </SECTION> <SECTION> <SECTNO>§ 19.6-7</SECTNO> <SUBJECT>Decision.</SUBJECT> <P>(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.</P> <P>(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.</P> <CITA>[46 FR 12958, Feb. 19, 1981. Redesignated and amended at 46 FR 18970, Mar. 27, 1981]</CITA> </SECTION> <SECTION> <SECTNO>§ 19.6-8</SECTNO> <SUBJECT>Allotment to beneficiary.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 19.6-9</SECTNO> <SUBJECT>Limitations.</SUBJECT> <P>(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:</P> <P>(1) Heirs or legatees of the previous spouse;</P> <P>(2) Creditors of either the principal or the previous spouse; or</P> <P>(3) Assignees of either the principal or the previous spouse.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 19.6-10</SECTNO> <SUBJECT>Liability.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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 <PRTPAGE P="79"/>of the obligation of the Department for the period in which the request is in effect. See § 19.14.</P> </SECTION> <SECTION> <SECTNO>§ 19.7</SECTNO> <SUBJECT>Spousal agreements.</SUBJECT> </SECTION> <SECTION> <SECTNO>§ 19.7-1</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 19.7-2</SECTNO> <SUBJECT>Agreement with spouse.</SUBJECT> <P>(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).</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 19.7-3</SECTNO> <SUBJECT>Agreement with former spouse.</SUBJECT> <P>(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;</P> <P>(1) A pension under § 19.9;</P> <P>(2) A regular survivor annuity under § 19.11-2;</P> <P>(3) A supplemental survivor annuity under § 19.10-6;</P> <P>(4) A lump sum payment for regular or recall service under § 19.13.</P> <FP>A spousal agreement shall also be used by a participant or former participant who has a former spouse on February 15, 1981, to elect a regular survivor annuity for such former spouse in accordance with § 19.11-2(e). An agreement to establish or increase any benefit for a former spouse entered into while the principal is married to someone else, must be signed and agreed to by both the spouse and the former spouse. An agreement affecting pension benefits may be filed at any time and will govern payments made after its acceptance by PER/ER/RET. An agreement affecting a regular survivor annuity must be filed before the end of the 12-month period after the divorce involving that former spouse or at the time of retirement, whichever occurs first, except as authorized in § 19.11-2(b) for persons retired on February 15, 1981, or in § 19.11-2(e) with respect to persons who were former spouses on February 15, 1981. This filing requirement stated in the Act makes it impossible to adjust, other than by court order, a regular survivor annuity for a former spouse when the divorce occurs after a retirement which occurs on or after February 15, 1981. The survivor annuity for the former spouse in such case is fixed by any spousal agreement entered into prior to the divorce, by § 19.11-2 or by court order. An agreement affecting supplemental survivor benefits or lump-sum payments must be filed before the supplemental annuity of the principal begins or lump-sum payment is made.</FP> <P>(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.</P> </SECTION> <SECTION> <PRTPAGE P="80"/> <SECTNO>§ 19.7-4</SECTNO> <SUBJECT>Form of agreement.</SUBJECT> <P>(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.</P> <P>(b) A spousal agreement must either be authenticated by a court or notarized.</P> </SECTION> <SECTION> <SECTNO>§ 19.7-5</SECTNO> <SUBJECT>Limitations.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(c) A spousal agreement may apply only to payments from the Fund for periods after receipt of a valid agreement by the Department.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 19.7-6</SECTNO> <SUBJECT>Duration and precedence of spousal agreements.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 19.8</SECTNO> <SUBJECT>Obligations of members.</SUBJECT> <P>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:</P> <P>(a) A pension to a former spouse pursuant to § 19.9;</P> <P>(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);</P> <P>(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;</P> <P>(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;</P> <P>(e) Lump-sum payments to a former spouse pursuant to § 19.13;</P> <P>(f) Benefits ordered by a court under § 19.6 or specified in a spousal agreement under § 19.7.</P> </SECTION> <SECTION> <SECTNO>§ 19.9</SECTNO> <SUBJECT>Pension benefits for former spouses.</SUBJECT> </SECTION> <SECTION> <SECTNO>§ 19.9-1</SECTNO> <SUBJECT>Entitlement.</SUBJECT> <P>(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.<PRTPAGE P="81"/> </P> <P>(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.</P> <P>(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.</P> <CITA>[46 FR 12958, Feb. 19, 1981. Redesignated and amended at 46 FR 18970, Mar. 27, 1981]</CITA> </SECTION> <SECTION> <SECTNO>§ 19.9-2</SECTNO> <SUBJECT>Commencement and termination.</SUBJECT> <P>(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:</P> <P>(1) The date the principal would qualify for an annuity (other than a disability annuity) on the basis of his/her creditable service;</P> <P>(2) The date the disability annuity begins; or</P> <P>(3) The first of the month in which the divorce becomes final.</P> <P>(b) The pension of a former spouse and the right thereto terminate on:</P> <P>(1) The last day of the month before the former spouse dies or remarries before 60 years of age; or</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 19.9-3</SECTNO> <SUBJECT>Computation and payment of pension to former spouse.</SUBJECT> <P>(a) A pension to a former spouse is paid monthly on the same date that annuity is paid to the principal.</P> <P>(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).</P> <P>(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.</P> <P>(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.</P> <P>(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 <PRTPAGE P="82"/>principal for the benefit of the former spouse.</P> </SECTION> <SECTION> <SECTNO>§ 19.9-4</SECTNO> <SUBJECT>Effect on annuitant.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 19.10</SECTNO> <SUBJECT>Types of annuities to members.</SUBJECT> </SECTION> <SECTION> <SECTNO>§ 19.10-1</SECTNO> <SUBJECT>Full annuity.</SUBJECT> <P>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.</P> <GPOTABLE CDEF="s50,7" COLS="2" OPTS="L0"> <ROW> <ENT I="01">Average basic annual salary for high 3 consecutive years of service</ENT> <ENT>$20,000</ENT> </ROW> <ROW RUL="n,s"> <ENT I="01">Multiplied by 2 pct</ENT> <ENT>.02</ENT> </ROW> <ROW> <ENT I="11"/> <ENT>$400.00</ENT> </ROW> <ROW RUL="n,s"> <ENT I="01">Multiplied by 35 years of creditable service</ENT> <ENT>.35</ENT> </ROW> <ROW> <ENT I="01">Full annuity</ENT> <ENT>$14,000</ENT> </ROW> </GPOTABLE> </SECTION> <SECTION> <SECTNO>§ 19.10-2</SECTNO> <SUBJECT>Reduced annuity with regular survivor annuity to spouse or former spouse.</SUBJECT> <P>(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<FR>1/2</FR> percent of the first $3,600 of the designated base, plus 10 percent of the balance of the base. If a regular survivor annuity is being provided for both a spouse and a former spouse, the bases for each are added and the calculation made as in the following example: </P> <EXTRACT> <P>Participant's full annuity as computed in § 19.10-1: $14,000.</P> <P>Maximum regular survivor annuity is 55 percent of full annuity: $7,700.</P> <P> <E T="03">Case I</E> (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.</P> <P>The base for the maximum regular survivor annuity for a spouse would then be 25 percent of $14,000, or $3,500.</P> <P>Combined base: $14,000.</P> <P>Participant's full annuity reduced as follows:</P> <P>2<FR>1/2</FR> percent of first $3,600 of the base: $90.</P> <P>Plus 10 percent of the amount over $3,600 ($14,000-3,600) $10,400: $1,040.</P> <P>Total reduction in participant's full annuity: $1,130.</P> <P>Participant's reduced annuity: $12,870.</P> <P>Survivor annuity for former spouse: 55 percent of $10,500 or $5,775.</P> <P>Survivor annuity for spouse: 55 percent of $3,500 or $1,925.</P> <P> <E T="03">Case II</E> (Participant married at retirement with no former spouse. All calculations made without reference to cost-of-living increases described in § 19.11-5d.)</P> <P>Joint election of base for regular survivor annuity of 90 percent of the maximum, or 90 percent of $14,000: $12,600.</P> <P>Participant's full annuity reduced as follows:</P> <P>2<FR>1/2</FR> percent of first $3,600 of the base: $90.</P> <P>Plus 10 percent of the amount over $3,600 ($12,600-3,600) $9,000: $900.</P> <P>Total reduction in participant's full annuity: $990.</P> <P>Participant's reduced annuity: $13,010.</P> <P>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.<PRTPAGE P="83"/> </P> <P>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.</P> <P>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.</P> <P>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.</P> <P>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.</P> <P>The survivor annuity for this spouse: 55 percent of $2,100 or $1,555.</P> <P>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.</P> <P>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:</P> <P>Base for survivor annuity for former spouse: 75% of $14,000 or $10,500.</P> <P>Survivor annuity for former spouse: 55% of $10,500 or $5,775.</P> <P>Base for survivor annuity for spouse: 15% of $14,000 or $2,100.</P> <P>Survivor annuity for spouse: 55% of $2,100 or $1,555.</P> <P>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.</P> <P>The participant's annuity after reduction for survivor benefit would be $14,000-$990 or $13,010.</P> <P>The pension for the former spouse would be 50%×$13,010×75% or $4,878.75.</P> <P>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.</P> </EXTRACT> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 19.10-3</SECTNO> <SUBJECT>Marriage after retirement.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 19.10-4</SECTNO> <SUBJECT>Death or divorce of a spouse and remarriage after retirement.</SUBJECT> <P>(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.</P> <P>(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 <PRTPAGE P="84"/>recomputation under paragraph (a) of this section.</P> </SECTION> <SECTION> <SECTNO>§ 19.10-5</SECTNO> <SUBJECT>Reduced annuity with additional survivor annuity to spouse or former spouse.</SUBJECT> <P>(a) <E T="03">General.</E> 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.</P> <P>(b) <E T="03">Limitation on amount.</E> 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.</P> <P>(c) <E T="03">Procedures to grant additional survivor annuity.</E> 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).</P> <P>(d) <E T="03">Eligibility for additional survivor annuity.</E> 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.</P> <P>(e) <E T="03">Payment for additional survivor annuity.</E> (1) Payment <E T="03">for</E> 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 <PRTPAGE P="85"/>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.</P> <P>(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.</P> <P>(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.</P> <GPOTABLE CDEF="s50,10,10" COLS="3" OPTS="L2"> <BOXHD> <CHED H="1">Age of principal and beneficiary on effective date of spousal agreement</CHED> <CHED H="1">Minimum monthly payment required to provide an additional survivor annuity of $100 per month.</CHED> <CHED H="2">Without COLA</CHED> <CHED H="2">With COLA</CHED> </BOXHD> <ROW> <ENT I="01">40</ENT> <ENT>$7.49</ENT> <ENT>$12.34</ENT> </ROW> <ROW> <ENT I="01">50</ENT> <ENT>14.18</ENT> <ENT>22.01</ENT> </ROW> <ROW> <ENT I="01">60</ENT> <ENT>23.55</ENT> <ENT>33.90</ENT> </ROW> <ROW> <ENT I="01">70</ENT> <ENT>35.57</ENT> <ENT>47.12</ENT> </ROW> </GPOTABLE> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 19.10-6</SECTNO> <SUBJECT>Benefits for recall service.</SUBJECT> <P>(a) <E T="03">Annuity of recalled participant.</E> 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 <PRTPAGE P="86"/>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:</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(b) <E T="03">Survivor benefit for death during recall service.</E> (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 <PRTPAGE P="87"/>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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 19.11</SECTNO> <SUBJECT>Survivor benefits.</SUBJECT> </SECTION> <SECTION> <SECTNO>§ 19.11-1</SECTNO> <SUBJECT>Kinds of survivor benefits.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 19.11-2</SECTNO> <SUBJECT>Regular survivor annuity for a former spouse.</SUBJECT> <P>(a) <E T="03">Divorce prior to retirement.</E> 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.</P> <P>(b) <E T="03">Divorce after retirement.</E> 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.</P> <P>(c) <E T="03">Death or remarriage of former spouse and transfer of survivor benefit to a spouse.</E> 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 <PRTPAGE P="88"/>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.</P> <P>(d) <E T="03">Amount of survivor annuity.</E> The amount of a regular survivor annuity is determined under § 19.11-3(c).</P> <P>(e) <E T="03">Special rules for election of survivor annuity for a person who is a former spouse on February 15, 1981.</E> (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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 19.11-3</SECTNO> <SUBJECT>Regular survivor annuity for a spouse.</SUBJECT> <P>(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.</P> <P>(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.<PRTPAGE P="89"/> </P> <P>(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.</P> <P>(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).</P> <CITA>[46 FR 12958, Feb. 19, 1981. Redesignated and amended at 46 FR 18970, Mar. 27, 1981]</CITA> </SECTION> <SECTION> <SECTNO>§ 19.11-4</SECTNO> <SUBJECT>Procedure in event a spouse or former spouse is missing.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 19.11-5</SECTNO> <SUBJECT>Commencement, termination and adjustment of annuities.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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 <PRTPAGE P="90"/>which precedes the month in which eligibility ceases.</P> <P>(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.</P> <P>(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.</P> <CITA>[46 FR 12958, Feb. 19, 1981. Redesignated and amended at 46 FR 18970, Mar. 27, 1981]</CITA> </SECTION> <SECTION> <SECTNO>§ 19.11-6</SECTNO> <SUBJECT>Death during active duty.</SUBJECT> <P>(a) <E T="03">Annuity for surviving former spouse.</E> 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.</P> <P>(b) <E T="03">Annuity for surviving spouse.</E> 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.</P> <P>(c) <E T="03">Annuity for a child or children.</E> 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.</P> <P>(d) <E T="03">Annuity changes.</E> Annuities based on a death in service are subject to the provisions of § 19.11-5 governing commencement, adjustment, termination and resumption of annuities.</P> </SECTION> <SECTION> <SECTNO>§ 19.11-7</SECTNO> <SUBJECT>Annuity payable to surviving child or children.</SUBJECT> <P>(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:<PRTPAGE P="91"/> </P> <P>(1) <E T="03">When survived by spouse and child or children.</E> 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:</P> <P>(i) $900</P> <P>(ii) $2,700 divided by the number of children—adjusted under paragraph (b).</P> <P>(2) <E T="03">When survived by a child or children but no spouse.</E> 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:</P> <P>(i) $1,080</P> <P>(ii) $3,240 divided by the number of children—adjusted under paragraph (b) of this section.</P> <P>(b) <E T="03">Adjusted rates.</E> 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.</P> <P>(c) <E T="03">Recomputation of annuity for child or children.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 19.11-8</SECTNO> <SUBJECT>Required elections between survivor benefits.</SUBJECT> <P>(a) <E T="03">Bar against concurrent payment under this Act and Workers' Compensation Act.</E> 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.</P> <P>(b) <E T="03">Election between survivor annuity and social security benefits.</E> 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 <E T="03">all</E> survivors to a foreign service annuity are terminated.</P> </SECTION> <SECTION> <SECTNO>§ 19.12</SECTNO> <SUBJECT>Employment in a Government agency.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 19.13</SECTNO> <SUBJECT>Lump-sum payment.</SUBJECT> </SECTION> <SECTION> <SECTNO>§ 19.13-1</SECTNO> <SUBJECT>Lump-sum credit.</SUBJECT> <P>“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 <PRTPAGE P="92"/>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.</P> </SECTION> <SECTION> <SECTNO>§ 19.13-2</SECTNO> <SUBJECT>Share payable to a former spouse.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 19.13-3</SECTNO> <SUBJECT>Payment after death of principal.</SUBJECT> <P>If a participant or former participant dies and no claim for annuity is payable, the lump-sum credit is paid to surviving beneficiaries.</P> </SECTION> <SECTION> <SECTNO>§ 19.14</SECTNO> <SUBJECT>Waiver of annuity.</SUBJECT> <P>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.</P> </SECTION> </PART> <PART> <EAR>Pt. 20</EAR> <HD SOURCE="HED">PART 20—BENEFITS FOR CERTAIN FORMER SPOUSES</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>20.1</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>20.2</SECTNO> <SUBJECT>Funding.</SUBJECT> <SECTNO>20.3</SECTNO> <SUBJECT>Qualifications.</SUBJECT> <SECTNO>20.4</SECTNO> <SUBJECT>Retirement benefits.</SUBJECT> <SECTNO>20.5</SECTNO> <SUBJECT>Survivor benefits.</SUBJECT> <SECTNO>20.6</SECTNO> <SUBJECT>COLA.</SUBJECT> <SECTNO>20.7</SECTNO> <SUBJECT>Waiver.</SUBJECT> <SECTNO>20.8</SECTNO> <SUBJECT>Effect on other benefits.</SUBJECT> <SECTNO>20.9</SECTNO> <SUBJECT>Application procedure.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>22 U.S.C. 3901 <E T="03">et seq.</E> </P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>53 FR 39457, Oct. 7, 1988, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 20.1</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>As used in this part, unless otherwise specified, the following have the meaning indicated:</P> <P> <E T="03">COLA</E> means cost-of-living adjustment in annuity.</P> <P> <E T="03">Creditable service</E> or <E T="03">service</E> means employment or other periods that are counted under sections 816, 817, or 854 in determining retirement benefits.</P> <P> <E T="03">Disability annuitant</E> 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 <E T="03">disability annuity</E> means a Foreign Service annuity computed under those sections.</P> <P> <E T="03">FSRDS</E> means the Foreign Service Retirement and Disability System established by subchapter I, chapter 8, of the Act.</P> <P> <E T="03">FSPS</E> means the Foreign Service Pension System established by subchapter II, chapter 8, of the Act.</P> <P> <E T="03">Former spouse</E> 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.</P> <P> <E T="03">Full annuity</E> 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.</P> <P> <E T="03">Participant</E> means a person who contributes to the Fund identified in § 20.2. Such person may participate in either FSRDS or FSPS.</P> <P> <E T="03">Principal</E> means a participant or former participant whose service forms the basis for a benefit for a former spouse under this part.</P> <P> <E T="03">Pro rata share,</E> 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 <PRTPAGE P="93"/>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.</P> </SECTION> <SECTION> <SECTNO>§ 20.2</SECTNO> <SUBJECT>Funding.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 20.3</SECTNO> <SUBJECT>Qualifications.</SUBJECT> <P>To be eligible for retirement or survivor benefits under this part, a former spouse must—</P> <P>(a) Have been a former spouse on February 14, 1981;</P> <P>(b) After becoming a former spouse, not have remarried before attaining age 55;</P> <P>(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</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 20.4</SECTNO> <SUBJECT>Retirement benefits.</SUBJECT> <P>(a) <E T="03">Type of benefits.</E> (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.</P> <P>(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.</P> <P>(b) <E T="03">Share.</E> The share of a participant's benefits to which a qualified former spouse is entitled is—</P> <P>(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</P> <P>(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.</P> <P>(c) <E T="03">Reduction of benefits.</E> 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.</P> <P>(d) <E T="03">Commencement, termination and suspension.</E> (1) Entitlement to retirement benefits under this section (except for a former spouse of a disability annuitant) shall commence on the latter of—</P> <P>(i) The day the principal becomes entitled to benefits described in § 20.4(a); or</P> <P>(ii) December 22, 1987.</P> <P>(2) Entitlement to retirement benefits under this section for a former spouse of a disability annuitant shall commence on the latter of—</P> <P>(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;</P> <P>(ii) The date the disability annuity begins; or</P> <P>(iii) December 22, 1987.</P> <P>(3) Entitlement to retirement benefits under this section shall terminate or be suspended on the earlier of—<PRTPAGE P="94"/> </P> <P>(i) Last day of the month before the former spouse dies or remarries before attaining age 55;</P> <P>(ii) Date benefits of the principal terminate or are suspended because of death, recall, reemployment, recovery from disability or for any other reason.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 20.5</SECTNO> <SUBJECT>Survivor benefits.</SUBJECT> <P>(a) <E T="03">Type of benefits.</E> 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:</P> <P>(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;</P> <P>(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;</P> <P>(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,</P> <P>(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.</P> <P>(b) <E T="03">Effect of election of alternate form annuity.</E> 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.</P> <P>(c) <E T="03">Reduction because of receipt of other survivor benefits.</E> 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.</P> <P>(d) <E T="03">Commencement and Termination.</E> Entitlement to survivor benefits under this section—</P> <P>(1) Shall commence on the latter of—</P> <P>(i) The date the principal dies;</P> <P>(ii) December 22, 1987; and</P> <P>(2) Shall terminate on the last day of the month before the former spouse dies or remarries before attaining age 55.</P> </SECTION> <SECTION> <SECTNO>§ 20.6</SECTNO> <SUBJECT>COLA.</SUBJECT> <P>(a) <E T="03">Retirement benefits.</E> 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.</P> <P>(b) <E T="03">Survivor benefits.</E> (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.<PRTPAGE P="95"/> </P> <P>(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.</P> <P>(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).</P> <P>(4) The first increase to which a former spouse becomes entitled whose annuity is computed under § 20.5(a)(3) or</P> <P>(5) Shall be prorated pursuant to paragraph (c)(1) of section 826 of the Act or 8462 or title 5, U.S. Code.</P> </SECTION> <SECTION> <SECTNO>§ 20.7</SECTNO> <SUBJECT>Waiver.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 20.8</SECTNO> <SUBJECT>Effect on other benefits.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 20.9</SECTNO> <SUBJECT>Application procedure.</SUBJECT> <P>(a) <E T="03">Submission of application.</E> 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.</P> <P>(b) <E T="03">Request for application.</E> 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 <E T="04">Federal Register</E> (October 7, 1988) must communicate with the Department as soon as possible and request an application. Request may be in person or by mail to the address in § 20.9(a) or by telephoning the Retirement Division on area code 202-647-9315. A request by letter must include the typed or printed full name and current address of the former spouse.</P> <P>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.</P> <P>(c) <E T="03">Payment of benefits delayed.</E> 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.</P> </SECTION> </PART> <PART> <EAR>Pt. 21</EAR> <HD SOURCE="HED">PART 21—INDEMNIFICATION OF EMPLOYEES</HD> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 301; 22 U.S.C. 2658.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>60 FR 29988, June 7, 1995, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 21.1</SECTNO> <SUBJECT>Policy.</SUBJECT> <P>(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.<PRTPAGE P="96"/> </P> <P>(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.</P> <P>(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:</P> <P>(1) Foreign courts or foreign administrative bodies and</P> <P>(2) Requests of less than five thousand dollars.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(h) Personal services contractors of the Department are considered employees for purposes of the policy set forth in this part.</P> <P>(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.</P> <P>(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.</P> <CITA>[60 FR 29988, June 7, 1995]</CITA> </SECTION> </PART> </SUBCHAP> <SUBCHAP TYPE="P"> <PRTPAGE P="97"/> <HD SOURCE="HED">SUBCHAPTER C—FEES AND FUNDS</HD> <PART> <EAR>Pt. 22</EAR> <HD SOURCE="HED">PART 22—SCHEDULE OF FEES FOR CONSULAR SERVICES—DEPARTMENT OF STATE AND FOREIGN SERVICE</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>22.1</SECTNO> <SUBJECT>Schedule of fees.</SUBJECT> <SECTNO>22.2</SECTNO> <SUBJECT>Requests for services in the United States.</SUBJECT> <SECTNO>22.3</SECTNO> <SUBJECT>Remittances in the United States.</SUBJECT> <SECTNO>22.4</SECTNO> <SUBJECT>Requests for services, Foreign Service.</SUBJECT> <SECTNO>22.5</SECTNO> <SUBJECT>Remittances to Foreign Service posts.</SUBJECT> <SECTNO>22.6</SECTNO> <SUBJECT>Refund of fees.</SUBJECT> <SECTNO>22.7</SECTNO> <SUBJECT>Collection and return of fees.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>8 U.S.C. 1153 note, 1351, 1351 note; 10 U.S.C. 2602(c); 22 U.S.C. 214, 2504(a), 4201, 4206, 4215, 4219; 31 U.S.C. 9701; Pub. L. 105-277, 112 Stat. 2681 <E T="03">et seq.</E>; Pub. L. No. 108-447, 118 Stat. 2809 <E T="03">et seq.</E>; E.O. 10718, 22 FR 4632, 3 CFR, 1954-1958 Comp., p. 382; E.O. 11295, 31 FR 10603, 3 CFR, 1966-1970 Comp., p. 570, Pub. L. 109-167, January 10, 2006, 119 Stat. 3578; Pub. L. 109-472, section 6, 120 Stat. 3554 (2007).</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>46 FR 58071, Nov. 30, 1981, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 22.1</SECTNO> <SUBJECT>Schedule of fees.</SUBJECT> <P>The following table sets forth the U.S. Department of State's Schedule of Fees for Consular Services:</P> <GPOTABLE CDEF="s100,xls84" COLS="2" OPTS="L2"> <TTITLE>Schedule of Fees for Consular Services</TTITLE> <BOXHD> <CHED H="1">Item No.</CHED> <CHED H="1">Fee</CHED> </BOXHD> <ROW EXPSTB="01" RUL="s"> <ENT I="21"> <E T="02">Passport and Citizenship Services</E> </ENT> </ROW> <ROW EXPSTB="00"> <ENT I="01">1. Passport Book Execution: Required for first-time applicants and others who must apply in person [01—Passport Book Execution]</ENT> <ENT>$25.</ENT> </ROW> <ROW> <ENT I="22">2. Passport Book Application Services for:</ENT> </ROW> <ROW> <ENT I="03">(a) Applicants age 16 or over (including renewals) [02—Adult Passport Book]</ENT> <ENT>55.</ENT> </ROW> <ROW> <ENT I="03">(b) Applicants under age 16 [03—Minor Passport Book]</ENT> <ENT>40.</ENT> </ROW> <ROW> <ENT I="03">(c) Passport Book amendments (extension of validity, name change, etc.) [04—Amendment]</ENT> <ENT>No fee.</ENT> </ROW> <ROW> <ENT I="03">(d) Passport Book security surcharge (enhanced border security fee) [05—Security Surcharge]</ENT> <ENT>20.</ENT> </ROW> <ROW> <ENT I="01">3. Expedited service: Passport processing within expedited processing period published on the Department's Web site (22 CFR 51.66(b))/or in-person service at a U.S. Passport Agency (not applicable abroad)</ENT> <ENT>60</ENT> </ROW> <ROW> <ENT I="22">4. Exemptions: The following applicants are exempted from passport fees:</ENT> </ROW> <ROW> <ENT I="03">(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(a)) proceeding abroad or returning to the United States in the discharge of their official duties [05-Passport Exempt]</ENT> <ENT>No fee.</ENT> </ROW> <ROW> <ENT I="03">(b) U.S. citizen seamen who require a passport in connection with their duties aboard an American flag vessel (22 U.S.C. 214) [05-Passport Exempt]</ENT> <ENT>No fee.</ENT> </ROW> <ROW> <ENT I="03">(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) [05-Passport Exempt]</ENT> <ENT>No fee.</ENT> </ROW> <ROW> <ENT I="03">(d) Employees of the American National Red Cross proceeding abroad as members of the Armed Forces of the United States (10 U.S.C. 2603) [05-Passport Exempt]</ENT> <ENT>No fee.</ENT> </ROW> <ROW> <ENT I="01">5. Travel Letter: Provided 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. (Consular time charges, item 75, may apply) [06-U.S.C. Travel Letter]</ENT> <ENT>No fee.</ENT> </ROW> <ROW> <ENT I="01">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) [07-PPT File Search]</ENT> <ENT>60.</ENT> </ROW> <ROW> <ENT I="01">7. Application for Report of Birth Abroad of a Citizen of the United States [08-Report Birth Abroad]</ENT> <ENT>65.</ENT> </ROW> <ROW> <ENT I="01">8. Passport security surcharge [09-Passport Surcharge]</ENT> <ENT>12.</ENT> </ROW> <ROW> <ENT I="22">9. Passport Card Services:</ENT> </ROW> <ROW> <ENT I="03">(a) Application fee for applicants age 16 or over [Adult Passport Card]</ENT> <ENT>20</ENT> </ROW> <ROW> <ENT I="03">(b) Application fee for applicants under age 16 [Minor Passport Card]</ENT> <ENT>10</ENT> </ROW> <ROW> <ENT I="03">(c) Execution fee [Passport Card Execution]</ENT> <ENT>25</ENT> </ROW> <ROW RUL="s"> <ENT I="22">10. [Reserved]</ENT> </ROW> <ROW EXPSTB="01"> <ENT I="21"> <E T="02">Overseas Citizens Services</E> </ENT> </ROW> <ROW RUL="s"> <ENT I="21"> <E T="02">Arrests, Welfare and Whereabouts, and Related Services</E> </ENT> </ROW> <ROW EXPSTB="00"> <ENT I="01">11. Arrest and prison visits</ENT> <ENT>No fee.</ENT> </ROW> <ROW> <PRTPAGE P="98"/> <ENT I="01">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</ENT> <ENT>No fee.</ENT> </ROW> <ROW RUL="s"> <ENT I="22">(Item no. 13 vacant)</ENT> </ROW> <ROW EXPSTB="01" RUL="s"> <ENT I="21"> <E T="02">Death and Estate Services</E> </ENT> </ROW> <ROW EXPSTB="00"> <ENT I="22">14. Assistance to next-of-kin:</ENT> </ROW> <ROW> <ENT I="03">(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)</ENT> <ENT>No fee.</ENT> </ROW> <ROW> <ENT I="03">(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) [11-Non U.S.C. Death]</ENT> <ENT>Consular Time (Item 75) Plus Expenses.</ENT> </ROW> <ROW> <ENT I="01">15. Issuance of Consular Mortuary Certificate on behalf of a non-U.S. citizen [12-Non-U.S.C. Mort Cert]</ENT> <ENT>60.</ENT> </ROW> <ROW> <ENT I="22">16. Acting as a provisional conservator of estates of U.S. citizens:</ENT> </ROW> <ROW> <ENT I="03">(a) Taking possession of personal effects; making an inventory under an official seal (unless significant time and/or expenses incurred)</ENT> <ENT>No fee.</ENT> </ROW> <ROW> <ENT I="03">(b) Overseeing the appraisal, sale, and final disposition of the estate, including disbursing funds, forwarding securities, etc. (unless significant time and/or expenses incurred)</ENT> <ENT>No fee.</ENT> </ROW> <ROW> <ENT I="03">(c) For services listed in 16 (a) or (b) when significant time and/or expenses are incurred [13-Estate Costs]</ENT> <ENT>Consular Time (Item 75) and/or Expenses.</ENT> </ROW> <ROW RUL="s"> <ENT I="22">(Items nos. 17 through 20 vacant)</ENT> </ROW> <ROW EXPSTB="01" RUL="s"> <ENT I="21"> <E T="02">Nonimmigrant Visa Services</E> </ENT> </ROW> <ROW EXPSTB="00"> <ENT I="22">21. Nonimmigrant visa application and border crossing card processing fees (per person):</ENT> </ROW> <ROW> <ENT I="03">(a) Nonimmigrant visa [21-MRV Processing]</ENT> <ENT>131.</ENT> </ROW> <ROW> <ENT I="03">(b) Border crossing card—10 year (age 15 and over) [22-131 BCC 10 Year]</ENT> <ENT>131.</ENT> </ROW> <ROW> <ENT I="03">(c) Border crossing card—5 year (under age 15). For Mexican citizen, if parent or guardian has or is applying for a border crossing card [23-BCC 5 Year]</ENT> <ENT>13.</ENT> </ROW> <ROW> <ENT I="22">22. Exemptions from nonimmigrant visa application processing fee:</ENT> </ROW> <ROW> <ENT I="03">(a) Applicants for A, G, C-3, NATO and diplomatic visas as defined in 22 CFR 41.26 [24-MRV Exempt]</ENT> <ENT>No fee.</ENT> </ROW> <ROW> <ENT I="03">(b) Applicants for J visas participating in official U.S. Government-sponsored educational and cultural exchanges [24-MRV Exempt]</ENT> <ENT>No fee.</ENT> </ROW> <ROW> <ENT I="03">(c) Replacement machine-readable visa when the original visa was not properly affixed or needs to be reissued through no fault of the applicant [24-MRV Exempt]</ENT> <ENT>No fee.</ENT> </ROW> <ROW> <ENT I="03">(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 [24-MRV Exempt]</ENT> <ENT>No fee.</ENT> </ROW> <ROW> <ENT I="03">(e) Applicants traveling to provide charitable services as determined by the Department [24-MRV Exempt]</ENT> <ENT>No fee.</ENT> </ROW> <ROW> <ENT I="03">(f) U.S. Government employees traveling on official business [24-MRV Exempt]</ENT> <ENT>No fee.</ENT> </ROW> <ROW> <ENT I="03">(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 [24-MRV Exempt]</ENT> <ENT>No fee.</ENT> </ROW> <ROW> <ENT I="01">23. Nonimmigrant visa issuance fee, including border-crossing cards [25-NIV Issuance Reciprocal]</ENT> <ENT>Reciprocal.</ENT> </ROW> <ROW> <ENT I="22">24. Exemptions from nonimmigrant visa issuance fee:</ENT> </ROW> <ROW> <ENT I="03">(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 [26-NIV Issuance Exempt]</ENT> <ENT>No fee.</ENT> </ROW> <ROW> <ENT I="03">(b) An applicant transiting to and from the United Nations Headquarters [26-NIV Issuance Exempt]</ENT> <ENT>No fee.</ENT> </ROW> <ROW> <ENT I="03">(c) An applicant participating in a U.S. Government-sponsored program [26-NIV Issuance Exempt]</ENT> <ENT>No fee.</ENT> </ROW> <ROW> <ENT I="03">(d) An applicant traveling to provide charitable services as determined by the Department [26-NIV Issuance Exempt]</ENT> <ENT>No fee.</ENT> </ROW> <ROW> <ENT I="01">25. Fraud Prevention and Detection Fee for Visa applicant included in L blanket petition (principal applicant only) [27-NIV Adjudication, Blanket L]</ENT> <ENT>500.</ENT> </ROW> <ROW RUL="s"> <ENT I="22">(Items nos. 26 through 30 vacant)</ENT> </ROW> <ROW EXPSTB="01" RUL="s"> <PRTPAGE P="99"/> <ENT I="21"> <E T="02">Immigrant and Special Visa Services</E> </ENT> </ROW> <ROW EXPSTB="00"> <ENT I="22">31. Filing immigrant visa petition (collected for the Bureau of U.S. Citizenship and Immigration Services):</ENT> </ROW> <ROW> <ENT I="03">(a) Petition to classify status of alien relative for issuance of immigrant visa [81-USCIS I-130 Petition]</ENT> <ENT>185.</ENT> </ROW> <ROW> <ENT I="03">(b) Petition to classify orphan as an immediate relative [82-USCIS I-600 Petition]</ENT> <ENT>525.</ENT> </ROW> <ROW> <ENT I="01">32. Immigrant visa application processing fee (per person) [31-IV Application]</ENT> <ENT>355.</ENT> </ROW> <ROW> <ENT I="01">33. Diversity Visa Lottery surcharge for lottery participation (per person applying for an immigrant visa as a result of the lottery program) [32-DV Processing]</ENT> <ENT>375.</ENT> </ROW> <ROW> <ENT I="01">34. Affidavit of Support Review (only when AOS is reviewed domestically)</ENT> <ENT>70.</ENT> </ROW> <ROW> <ENT I="22">35. Special visa services:</ENT> </ROW> <ROW> <ENT I="03">(a) Determining Returning Resident Status [33-Returning Resident]</ENT> <ENT>400.</ENT> </ROW> <ROW> <ENT I="03">(b) Transportation letter for Legal Permanent Residents of U.S. [34-LPR Transportation Letter]</ENT> <ENT>165.</ENT> </ROW> <ROW> <ENT I="03">(c) Waiver of 2-year residency requirement [J Waiver]</ENT> <ENT>215.</ENT> </ROW> <ROW> <ENT I="03">(d) Waiver of immigrant visa ineligibility (collected for the Bureau of U.S. Citizenship and Immigration Services) [83-IV Waiver]</ENT> <ENT>250.</ENT> </ROW> <ROW> <ENT I="03">(e) Refugee or significant public benefit parole case processing [35-Refugee/Parole]</ENT> <ENT>No fee.</ENT> </ROW> <ROW> <ENT I="01">36. Immigrant visa security surcharge [37-IV Surcharge]</ENT> <ENT>45.</ENT> </ROW> <ROW RUL="s"> <ENT I="22">(Items nos. 37 through 40 vacant)</ENT> </ROW> <ROW EXPSTB="01" RUL="s"> <ENT I="21"> <E T="02">Documentary Services</E> </ENT> </ROW> <ROW EXPSTB="00"> <ENT I="22">41. Providing notarial service:</ENT> </ROW> <ROW> <ENT I="03">(a) First service (seal) [41-Notarial]</ENT> <ENT>30.</ENT> </ROW> <ROW> <ENT I="03">(b) Each additional seal provided at the same time in connection with the same transaction [42-Additional Notarial]</ENT> <ENT>20.</ENT> </ROW> <ROW> <ENT I="22">42. Certification of a true copy or that no record of an official file can be located (by a post abroad):</ENT> </ROW> <ROW> <ENT I="03">(a) First copy [43-Certified Copy]</ENT> <ENT>30.</ENT> </ROW> <ROW> <ENT I="03">(b) Each additional copy provided at the same time [44-Additional Copy]</ENT> <ENT>20.</ENT> </ROW> <ROW> <ENT I="22">43. Provision of documents, certified copies of documents, and other certifications by the Department of State (domestic):</ENT> </ROW> <ROW> <ENT I="03">(a) Documents relating to births, marriages, and deaths of U.S. citizens abroad originally issued by a U.S. Embassy or Consulate</ENT> <ENT>30.</ENT> </ROW> <ROW> <ENT I="03">(b) Issuance of Replacement Report of Birth Abroad</ENT> <ENT>30.</ENT> </ROW> <ROW> <ENT I="03">(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</ENT> <ENT>30.</ENT> </ROW> <ROW> <ENT I="03">(d) Certifying a copy of a document or extract from an official passport record</ENT> <ENT>30.</ENT> </ROW> <ROW> <ENT I="03">(e) Certifying that no record of an official file can be located [45-Brth/Mar/Death/No Record]</ENT> <ENT>30.</ENT> </ROW> <ROW> <ENT I="03">(f) Each additional copy provided at same time [46-Additional Cert]</ENT> <ENT>20.</ENT> </ROW> <ROW> <ENT I="22">44. Authentications (by posts abroad):</ENT> </ROW> <ROW> <ENT I="03">(a) Authenticating a foreign notary or other foreign official seal or signature</ENT> <ENT>30.</ENT> </ROW> <ROW> <ENT I="03">(b) Authenticating a U.S. Federal, State, or territorial seal</ENT> <ENT>30.</ENT> </ROW> <ROW> <ENT I="03">(c) Certifying to the official status of an officer of the United States Department of State or of a foreign diplomatic or consular officer accredited to or recognized by the United States Government</ENT> <ENT>30.</ENT> </ROW> <ROW> <ENT I="03">(d) Each authentication [47-Authentication]</ENT> <ENT>30.</ENT> </ROW> <ROW> <ENT I="22">45. Exemptions: Notarial, certification, and authentication fees or passport file search fees will not be charged when the service is performed:</ENT> </ROW> <ROW> <ENT I="03">(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) [48-Documents Exempt]</ENT> <ENT>No fee.</ENT> </ROW> <ROW> <ENT I="03">(b) With respect to documents to be presented by claimants, beneficiaries, or their witnesses in connection with obtaining Federal, State, or municipal benefits [48-Documents Exempt]</ENT> <ENT>No fee.</ENT> </ROW> <ROW> <ENT I="03">(c) For U.S. citizens outside the United States preparing ballots for any public election in the United States or any of its territories [48-Documents Exempt]</ENT> <ENT>No fee.</ENT> </ROW> <ROW> <ENT I="03">(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 [48-Documents Exempt]</ENT> <ENT>No fee.</ENT> </ROW> <ROW> <ENT I="03">(e) At the direct request of a foreign government official when appropriate or as a reciprocal courtesy [48-Documents Exempt]</ENT> <ENT>No fee.</ENT> </ROW> <ROW> <ENT I="03">(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 [48-Documents Exempt]</ENT> <ENT>No fee.</ENT> </ROW> <ROW> <ENT I="03">(g) With respect to documents whose production is ordered by a court of competent jurisdiction [48-Documents Exempt]</ENT> <ENT>No fee.</ENT> </ROW> <ROW> <PRTPAGE P="100"/> <ENT I="03">(h) With respect to affidavits of support for immigrant visa applications [48-Documents Exempt]</ENT> <ENT>No fee.</ENT> </ROW> <ROW> <ENT I="03">(i) With respect to endorsing U.S. Savings Bonds Certificates [48-Documents Exempt]</ENT> <ENT>No fee.</ENT> </ROW> <ROW RUL="s"> <ENT I="22">(Items nos. 46 through 50 vacant)</ENT> </ROW> <ROW EXPSTB="01" RUL="s"> <ENT I="21"> <E T="02">Judicial Assistance Services</E> </ENT> </ROW> <ROW EXPSTB="00"> <ENT I="22">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:</ENT> </ROW> <ROW> <ENT I="03">[51-Letters Rogatory]</ENT> <ENT>735.</ENT> </ROW> <ROW> <ENT I="03">[52-FSIA]</ENT> <ENT>735.</ENT> </ROW> <ROW> <ENT I="22">52. Taking depositions or executing commissions to take testimony:</ENT> </ROW> <ROW> <ENT I="03">(a) Scheduling/arranging appointments for depositions, including depositions by video teleconference (per daily appointment) [53-Arrange Depo]</ENT> <ENT>475.</ENT> </ROW> <ROW> <ENT I="03">(b) Attending or taking depositions, or executing commissions to take testimony (per hour or part thereof) [54-Depose/Hourly]</ENT> <ENT>265 Per Hour Plus Expenses.</ENT> </ROW> <ROW> <ENT I="03">(c) Swearing in witnesses for telephone depositions [55-Telephone Oath]</ENT> <ENT>265.</ENT> </ROW> <ROW> <ENT I="03">(d) Supervising telephone depositions (per hour or part thereof over the first hour) [56-Supervise Tel Depo]</ENT> <ENT>265 Per Hour Plus Expenses.</ENT> </ROW> <ROW> <ENT I="03">(e) Providing seal and certification of depositions [57-Deposition Cert]</ENT> <ENT>70.</ENT> </ROW> <ROW> <ENT I="22">53. Exemptions: Deposition or executing commissions to take testimony. Fees will not be charged when the service is performed:</ENT> </ROW> <ROW> <ENT I="03">(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). [58-Judicial Exempt]</ENT> <ENT>No fee.</ENT> </ROW> <ROW> <ENT I="03">(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 [59-Indigent Test]</ENT> <ENT>No fee.</ENT> </ROW> <ROW RUL="s"> <ENT I="22">(Items nos. 54 through 60 vacant)</ENT> </ROW> <ROW EXPSTB="01" RUL="s"> <ENT I="21"> <E T="02">Services Relating to Vessels and Seamen</E> </ENT> </ROW> <ROW EXPSTB="00"> <ENT I="22">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:</ENT> </ROW> <ROW> <ENT I="03">[61-Shipping Bill of Sale]</ENT> <ENT>Consular Time (Item 75) Plus Expenses.</ENT> </ROW> <ROW> <ENT I="03">[62-Shipping Consular Radio LISC]</ENT> <ENT>Time (Item 75) Plus Expenses.</ENT> </ROW> <ROW> <ENT I="03">[63-Shipping Cert AM Own]</ENT> <ENT>Consular Time (Item 75) Plus Expenses.</ENT> </ROW> <ROW> <ENT I="03">[64-Shipping Misc]</ENT> <ENT>Consular Time (Item 75) Plus Expenses.</ENT> </ROW> <ROW RUL="s"> <ENT I="22">(Items nos. 62 through 70 vacant)</ENT> </ROW> <ROW EXPSTB="01" RUL="s"> <ENT I="21"> <E T="02">Administrative Services</E> </ENT> </ROW> <ROW EXPSTB="00"> <ENT I="01">71. Non-emergency telephone calls [70-Toll Call Cost] [71-Toll Cost Surcharge]</ENT> <ENT>Long Distance Charge Plus $10.</ENT> </ROW> <ROW> <ENT I="01">72. Setting up and maintaining a trust account: For one year or less to transfer funds to or for the benefit of a U.S. citizen in need in a foreign country [72-OCS Trust]</ENT> <ENT>30.</ENT> </ROW> <ROW> <ENT I="01">73. Transportation charges incurred in the performance of fee and no-fee services when appropriate and necessary [73-Transportation]</ENT> <ENT>Expenses Incurred.</ENT> </ROW> <ROW> <ENT I="01">74. Return check processing fee [74-Return Check]</ENT> <ENT>25.</ENT> </ROW> <ROW> <ENT I="01">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 employee) [75-Consular Time]</ENT> <ENT>265.</ENT> </ROW> <ROW> <ENT I="01">76. Photocopies (per page) [76-Photocopy]</ENT> <ENT>1.</ENT> </ROW> <ROW> <ENT I="22">(Items nos. 77 through 80 vacant)</ENT> </ROW> </GPOTABLE> <CITA>[70 FR 5374, Feb. 2, 2005, as amended at 72 FR 45889, Aug. 16, 2007; 72 FR 72244, Dec. 20, 2007; 73 FR 3867, Jan. 23, 2008; 73 FR 5090, Jan. 29, 2008]</CITA> </SECTION> <SECTION> <SECTNO>§ 22.2</SECTNO> <SUBJECT>Requests for services in the United States.</SUBJECT> <P>(a) <E T="03">Requests for records.</E> Requests by the file subject or the individual's authorized agent for services involving U.S. passport applications and related <PRTPAGE P="101"/>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.</P> <P>(b) <E T="03">Authentication services.</E> 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.</P> <CITA>[46 FR 58071, Nov. 30, 1981, as amended at 64 FR 66770, Nov. 30, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 22.3</SECTNO> <SUBJECT>Remittances in the United States.</SUBJECT> <P>(a) <E T="03">Type of remittance.</E> 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.</P> <P>(b) <E T="03">Exact payment of fees.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 22.4</SECTNO> <SUBJECT>Requests for services, Foreign Service.</SUBJECT> <P>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).</P> </SECTION> <SECTION> <SECTNO>§ 22.5</SECTNO> <SUBJECT>Remittances to Foreign Service posts.</SUBJECT> <P>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.</P> <P>(a) <E T="03">Time at which fees become payable.</E> 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.</P> <P>(b) <E T="03">Receipt for fees; register of services.</E> 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 <PRTPAGE P="102"/>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.</P> <P>(c) <E T="03">Deposits to guarantee payment of fees or incidental costs.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 22.6</SECTNO> <SUBJECT>Refund of fees.</SUBJECT> <P>(a) Fees which have been collected for deposit in the Treasury are refundable:</P> <P>(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);</P> <P>(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</P> <P>(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.</P> <P>(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.</P> <CITA>[52 FR 29515, Aug. 10, 1987, as amended at 65 FR 14212, Mar. 16, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 22.7</SECTNO> <SUBJECT>Collection and return of fees.</SUBJECT> <P>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.</P> </SECTION> </PART> <PART> <EAR>Pt. 23</EAR> <HD SOURCE="HED">PART 23—FINANCE AND ACCOUNTING</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>23.1</SECTNO> <SUBJECT>Remittances made payable to the Department of State.</SUBJECT> <SECTNO>23.2</SECTNO> <SUBJECT>Endorsing remittances for deposit in the Treasury.</SUBJECT> <SECTNO>23.3</SECTNO> <SUBJECT>Refunds.</SUBJECT> <SECTNO>23.4</SECTNO> <SUBJECT>Representative value in exchange.</SUBJECT> <SECTNO>23.5</SECTNO> <SUBJECT>Claims for settlement by Department of State or General Accounting Office.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>22 U.S.C. 2651a.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>22 FR 10793, Dec. 27, 1957, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 23.1</SECTNO> <SUBJECT>Remittances made payable to the Department of State.</SUBJECT> <P>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.)</P> </SECTION> <SECTION> <SECTNO>§ 23.2</SECTNO> <SUBJECT>Endorsing remittances for deposit in the Treasury.</SUBJECT> <P>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 <PRTPAGE P="103"/>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.</P> </SECTION> <SECTION> <SECTNO>§ 23.3</SECTNO> <SUBJECT>Refunds.</SUBJECT> <P>(a) <E T="03">Rectifications and readjustments.</E> 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.</P> <P>(b) <E T="03">Refund of wrongful exactions.</E> See § 13.1 of this chapter concerning recovery from consular officers of amounts wrongfully exacted and withheld by them.</P> <CITA>[22 FR 10793, Dec. 27, 1957, as amended at 65 FR 14212, Mar. 16, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 23.4</SECTNO> <SUBJECT>Representative value in exchange.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 23.5</SECTNO> <SUBJECT>Claims for settlement by Department of State or General Accounting Office.</SUBJECT> <P>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:</P> <P>(a) Refunds of amounts representing payroll deductions such as for any retirement and disability fund;</P> <P>(b) Amounts due deceased, incompetent, or insolvent persons including payees or bona fide holders of unpaid Government checks;</P> <P>(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</P> <P>(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.</P> </SECTION> </PART> </SUBCHAP> <SUBCHAP TYPE="P"> <PRTPAGE P="104"/> <HD SOURCE="HED">SUBCHAPTER D—CLAIMS AND STOLEN PROPERTY</HD> <PART> <EAR>Pt. 33</EAR> <HD SOURCE="HED">PART 33—FISHERMEN'S PROTECTIVE ACT GUARANTY FUND PROCEDURES UNDER SECTION 7</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>33.1</SECTNO> <SUBJECT>Purpose.</SUBJECT> <SECTNO>33.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>33.3</SECTNO> <SUBJECT>Eligibility.</SUBJECT> <SECTNO>33.4</SECTNO> <SUBJECT>Applications.</SUBJECT> <SECTNO>33.5</SECTNO> <SUBJECT>Guaranty agreements.</SUBJECT> <SECTNO>33.6</SECTNO> <SUBJECT>Fees.</SUBJECT> <SECTNO>33.7</SECTNO> <SUBJECT>Conditions for claims.</SUBJECT> <SECTNO>33.8</SECTNO> <SUBJECT>Claim procedures.</SUBJECT> <SECTNO>33.9</SECTNO> <SUBJECT>Amount of award.</SUBJECT> <SECTNO>33.10</SECTNO> <SUBJECT>Payments.</SUBJECT> <SECTNO>33.11</SECTNO> <SUBJECT>Records.</SUBJECT> <SECTNO>33.12</SECTNO> <SUBJECT>Penalties.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>22 U.S.C. 1977.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>61 FR 49967, Sept. 24, 1996, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 33.1</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 33.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>For the purpose of this part, the following terms mean:</P> <P> <E T="03">Act.</E> The Fishermen's Protective Act of 1967 (22 U.S.C. 1971 <E T="03">et seq</E>.).</P> <P> <E T="03">Capital equipment.</E> Equipment or other property which may be depreciated for income tax purposes.</P> <P> <E T="03">Depreciated replacement costs.</E> 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.</P> <P> <E T="03">Downtime.</E> The time a vessel normally would be in port or transiting to and from the fishing grounds.</P> <P> <E T="03">Expendable items.</E> Any property, excluding that which may be depreciated for income tax purposes, which is maintained in inventory or expensed for tax purposes.</P> <P> <E T="03">Fund.</E> The Fishermen's Guaranty Fund established in the U.S. Treasury under section 7(c) of the Act (22 U.S.C. 1977(c)).</P> <P> <E T="03">Market value.</E> 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.</P> <P> <E T="03">Other direct charge.</E> Any levy which is imposed in addition to, or in lieu of any fine, license fee, registration fee, or other charge.</P> <P> <E T="03">Owner.</E> The owner or charterer of a commercial fishing vessel.</P> <P> <E T="03">Secretary.</E> The Secretary of State or the designee of the Secretary of State.</P> <P> <E T="03">Seizure.</E> Arrest of a fishing vessel by a foreign country for allegedly illegal fishing.</P> <P> <E T="03">U.S. fishing vessel.</E> Any private vessel documented or certified under the laws of the United States as a commercial fishing vessel.</P> </SECTION> <SECTION> <SECTNO>§ 33.3</SECTNO> <SUBJECT>Eligibility.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 33.4</SECTNO> <SUBJECT>Applications.</SUBJECT> <P>(a) <E T="03">Applicant.</E> An eligible applicant for a guaranty agreement must:</P> <P>(1) Own or charter a U.S. fishing vessel; and</P> <P>(2) Submit with his application the fee specified in § 33.6 below.</P> <P>(b) <E T="03">Application forms.</E> 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.</P> <P>(c) <E T="03">Where to apply.</E> 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.<PRTPAGE P="105"/> </P> <P>(d) <E T="03">Application approval.</E> Application approval will be by execution of the guaranty agreement by the Secretary or by the Secretary's designee.</P> </SECTION> <SECTION> <SECTNO>§ 33.5</SECTNO> <SUBJECT>Guaranty agreements.</SUBJECT> <P>(a) <E T="03">Period in effect.</E> 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.</P> <P>(b) <E T="03">Guaranty agreement transfer.</E> 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.</P> <P>(c) <E T="03">Guaranty agreement renewal.</E> 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.</P> <P>(d) <E T="03">Provisions of the agreement.</E> 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 <E T="03">et seq</E>.) 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.</P> </SECTION> <SECTION> <SECTNO>§ 33.6</SECTNO> <SUBJECT>Fees.</SUBJECT> <P>(a) <E T="03">General.</E> 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.</P> <P>(b) <E T="03">Amount and payment.</E> 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 <E T="04">Federal Register.</E> Each notice will establish the amount of the fee, when the fee is due, when the fee is payable, and any special conditions surrounding extension of prior agreements or execution of new agreements. Unless otherwise specified in such notices, agreement coverage will commence with the postmarked date of the fee payment and application.</P> <P>(c) <E T="03">Adjustment and refund.</E> 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.</P> <P>(d) <E T="03">Disposition.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 33.7</SECTNO> <SUBJECT>Conditions for claims.</SUBJECT> <P>(a) Unless there is clear and convincing credible evidence that the seizure did not meet the requirements of <PRTPAGE P="106"/>the Act, payment of claims will be made when:</P> <P>(1) A covered vessel is seized by a foreign country under conditions specified in the Act and the guaranty agreement; and</P> <P>(2) The incident occurred during the period the guaranty agreement was in force for the vessel involved.</P> <P>(b) Payments will be made to the owner for:</P> <P>(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:</P> <P>(i) Damage to, or destruction of, the vessel or its equipment; or</P> <P>(ii) Loss or confiscation of the vessel or its equipment; and</P> <P>(iii) Dockage fees or utilities;</P> <P>(2) The market value of fish or shellfish caught before seizure of the vessel and confiscated or spoiled during the period of detention; and</P> <P>(3) Up to 50 percent of the vessel's gross income lost as a direct result of the seizure and detention.</P> <P>(c) The exceptions are that no payment will be made from the Fund for a seizure which is:</P> <P>(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);</P> <P>(2) Made by a country at war with the United States;</P> <P>(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;</P> <P>(4) Which occurs before the guaranty agreement's effective date or after its termination;</P> <P>(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);</P> <P>(6) For which material requirements of the guaranty agreement, the Act, or the program regulations have not been fully fulfilled; or</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 33.8</SECTNO> <SUBJECT>Claim procedures.</SUBJECT> <P>(a) <E T="03">Where and when to apply.</E> 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.</P> <P>(b) <E T="03">Contents of claim.</E> 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:</P> <P>(1) The captain's sworn statement about the exact location and activity of the vessel when seized;</P> <P>(2) Certified copies of charges, hearings, and findings by the government seizing the vessel;</P> <P>(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;</P> <P>(4) A detailed computation of lost income claimed, including:</P> <P>(i) The date and time seized and released;</P> <P>(ii) The number of miles and running time from the point of seizure to the point of detention;</P> <P>(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);<PRTPAGE P="107"/> </P> <P>(iv) The tonnage of catch on board at the time of seizure;</P> <P>(v) The vessel's average catch-per-day's fishing for the three calendar years preceding the seizure;</P> <P>(vi) The vessel's average downtime between fishing trips for the three calendar years preceding the seizure; and</P> <P>(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</P> <P>(5) Documentation for confiscated, damaged, destroyed, or stolen equipment, including:</P> <P>(i) The date and cost of acquisition supported by invoices or other acceptable proof of ownership; and</P> <P>(ii) An estimate from a commercial source of the replacement or repair cost.</P> <P>(c) <E T="03">Burden of proof.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 33.9</SECTNO> <SUBJECT>Amount of award.</SUBJECT> <P>(a) <E T="03">Lost fishing time.</E> 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.</P> <P>(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;</P> <P>(2) Compensation for capital equipment other than vessel, will be based on depreciated replacement cost;</P> <P>(3) Compensation for expendable items and crew's belongings will be 50 percent of their replacement costs; and</P> <P>(4) Compensation for confiscated catch will be for full value, based on the price-per-pound.</P> <P>(b) <E T="03">Fuel expense.</E> 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.</P> <P>(c) <E T="03">Stolen or confiscated property.</E> 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:</P> <P>(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;</P> <P>(2) Compensation for capital equipment other than a vessel, will be based on depreciated replacement cost;</P> <P>(3) Compensation for expendable items and crew's belongings will be 50 percent of their replacement cost; and</P> <P>(4) Compensation for confiscated catch will be for full value, based on the price-per-pound.</P> <P>(d) <E T="03">Insurance proceeds.</E> No payments will be made from the Fund for losses covered by any policy of insurance or other provisions of law.</P> <P>(e) [Reserved]</P> <P>(f) <E T="03">Appeals.</E> All determinations under this section are final and are not subject to arbitration or appeal.</P> </SECTION> <SECTION> <PRTPAGE P="108"/> <SECTNO>§ 33.10</SECTNO> <SUBJECT>Payments.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 33.11</SECTNO> <SUBJECT>Records.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 33.12</SECTNO> <SUBJECT>Penalties.</SUBJECT> <P>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.</P> </SECTION> </PART> <PART> <EAR>Pt. 34</EAR> <HD SOURCE="HED">PART 34—DEBT COLLECTION</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—General Provision</HD> <SECHD>Sec.</SECHD> <SECTNO>34.1</SECTNO> <SUBJECT>Purpose.</SUBJECT> <SECTNO>34.2</SECTNO> <SUBJECT>Scope.</SUBJECT> <SECTNO>34.3</SECTNO> <SUBJECT>Exceptions.</SUBJECT> <SECTNO>34.4</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>34.5</SECTNO> <SUBJECT>Other procedures or actions.</SUBJECT> <SECTNO>34.6</SECTNO> <SUBJECT>Interest, penalties, and administrative costs.</SUBJECT> <SECTNO>34.7</SECTNO> <SUBJECT>Collection in installments.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Collection Actions</HD> <SECTNO>34.8</SECTNO> <SUBJECT>Notice and demand for payment.</SUBJECT> <SECTNO>34.9</SECTNO> <SUBJECT>Request for internal administrative review.</SUBJECT> <SECTNO>34.10</SECTNO> <SUBJECT>Collection methods.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Salary Offset</HD> <SECTNO>34.11</SECTNO> <SUBJECT>Scope.</SUBJECT> <SECTNO>34.12</SECTNO> <SUBJECT>Coordinating offset with another Federal agency.</SUBJECT> <SECTNO>34.13</SECTNO> <SUBJECT>Notice requirements before offset.</SUBJECT> <SECTNO>34.14</SECTNO> <SUBJECT>Request for an outside hearing for certain debts.</SUBJECT> <SECTNO>34.15</SECTNO> <SUBJECT>Outside hearing.</SUBJECT> <SECTNO>34.16</SECTNO> <SUBJECT>Procedures for salary offset.</SUBJECT> <SECTNO>34.17</SECTNO> <SUBJECT>Non-waiver of rights by payment.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Collection Adjustments</HD> <SECTNO>34.18</SECTNO> <SUBJECT>Waivers of indebtedness.</SUBJECT> <SECTNO>34.19</SECTNO> <SUBJECT>Compromise.</SUBJECT> <SECTNO>34.20</SECTNO> <SUBJECT>Suspension.</SUBJECT> <SECTNO>34.21</SECTNO> <SUBJECT>Termination.</SUBJECT> <SECTNO>34.22</SECTNO> <SUBJECT>Discharge.</SUBJECT> <SECTNO>34.23</SECTNO> <SUBJECT>Bankruptcy.</SUBJECT> <SECTNO>34.24</SECTNO> <SUBJECT>Refunds.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>31 U.S.C. 3701-3719; 5 U.S.C. 5514; 31 C.F.R. part 285; 31 CFR parts 900-904; 5 CFR 550 subpart K.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>71 FR 16482, Apr. 3, 2006, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—General Provisions</HD> <SECTION> <SECTNO>§ 34.1</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 34.2</SECTNO> <SUBJECT>Scope.</SUBJECT> <P>(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 <PRTPAGE P="109"/>with the Federal Claims Collection Standards (FCCS) of the Department of the Treasury and Department of Justice, 31 CFR parts 900-904.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 34.3</SECTNO> <SUBJECT>Exceptions.</SUBJECT> <P>(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.</P> <P>(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).</P> <P>(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.</P> <P>(d) Tax debts are excluded from the coverage of this regulation.</P> </SECTION> <SECTION> <SECTNO>§ 34.4</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>For purposes of the section:</P> <P>(a) <E T="03">Administrative offset</E> 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.</P> <P>(b) <E T="03">Administrative wage garnishment</E> 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.</P> <P>(c) <E T="03">Compromise</E> 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.</P> <P>(d) <E T="03">Creditor agency</E> means the Federal agency to which a debt is owed.</P> <P>(e) <E T="03">Debt</E> or <E T="03">claim</E> 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.</P> <P>(f) <E T="03">Debtor</E> means a person who owes the Federal government money.</P> <P>(g) <E T="03">Delinquent debt</E> 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.</P> <P>(h) <E T="03">Discharge</E> means the release of a debtor from personal liability for a debt. Further collection action is prohibited.</P> <P>(i) <E T="03">Disposable pay</E> 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.</P> <P>(j) <E T="03">FCCS</E> means the Federal Claims Collection Standards published jointly by the Departments of the Treasury and Justice and codified at 31 CFR parts 900-904.</P> <P>(k) <E T="03">Person</E> 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.</P> <P>(l) <E T="03">Salary offset</E> 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.</P> <P>(m) <E T="03">Suspension</E> means the temporary cessation of active debt collection pending the occurrence of an anticipated event.</P> <P>(n) <E T="03">Termination</E> means the cessation of all active debt collection action for the foreseeable future.</P> <P>(o) <E T="03">Waiver</E> means a decision to forgo collection of a debt owed to the United <PRTPAGE P="110"/>States, as provided for by a specific statute and according to the standards set out under that statute.</P> </SECTION> <SECTION> <SECTNO>§ 34.5</SECTNO> <SUBJECT>Other procedures or actions.</SUBJECT> <P>(a) Nothing contained in this regulation is intended to require STATE to duplicate administrative proceedings required by contract or other laws or regulations.</P> <P>(b) Nothing in this regulation is intended to preclude utilization of informal administrative actions or remedies which may be available.</P> <P>(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.</P> <P>(d) The failure of STATE to comply with any provision in this regulation shall not serve as defense to the debt.</P> </SECTION> <SECTION> <SECTNO>§ 34.6</SECTNO> <SUBJECT>Interest, penalties, and administrative costs.</SUBJECT> <P>Except as otherwise provided by statute, contract or excluded in accordance with the FCCS, STATE will assess:</P> <P>(a) Interest on delinquent debts in accordance with 31 CFR 901.9.</P> <P>(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.</P> <P>(c) Administrative costs to cover the costs of processing and calculating delinquent debts.</P> <P>(d) Late payment charges under paragraphs (a) and (b) of this section shall be computed from the date of delinquency.</P> <P>(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.</P> <P>(f) STATE shall consider waiver of interest, penalties and/or administrative costs in accordance with the FCCS, 31 CFR 901.9(g).</P> </SECTION> <SECTION> <SECTNO>§ 34.7</SECTNO> <SUBJECT>Collection in installments.</SUBJECT> <P>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.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Collection Actions</HD> <SECTION> <SECTNO>§ 34.8</SECTNO> <SUBJECT>Notice and demand for payment.</SUBJECT> <P>(a) STATE shall promptly hand deliver or send by first-class mail to the debtor at 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.</P> <P>(b) The written notice shall inform the debtor of:</P> <P>(1) The basis of the debt;</P> <P>(2) The amount of the debt;</P> <P>(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;</P> <P>(4) The applicable standards for imposing of interest, penalties and administrative costs to delinquent debts;</P> <P>(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;</P> <P>(6) The name, address and telephone number of a contact person or office within STATE;<PRTPAGE P="111"/> </P> <P>(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:</P> <P>(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;</P> <P>(ii) Referral to private collection agency</P> <P>(iii) Report to credit bureaus</P> <P>(iv) Administrative Wage Garnishment</P> <P>(v) Litigation by the Department of Justice</P> <P>(vi) Referral to the Financial Management Service of the Department of the Treasury for collection</P> <P>(vii) Liquidation of collateral</P> <P>(viii) Other actions as permitted by the FCCS and applicable law;</P> <P>(8) The debtor's right to inspect and copy records related to the debt;</P> <P>(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;</P> <P>(10) The debtor's right, if any, to request waiver of collection of certain debts, as applicable (see § 34.18);</P> <P>(11) Requirement that the debtor advise STATE of any bankruptcy proceeding of the debtor; and</P> <P>(12) Provision for refund of amounts collected if later decision finds that the amount of the debt is not owed or is waived.</P> <P>(c) <E T="03">Exceptions to notice requirements.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 34.9</SECTNO> <SUBJECT>Requests for internal administrative review.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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 <PRTPAGE P="112"/>made a proposal for a payment plan to which STATE agrees, by the date specified in the notification of STATE's decision.</P> </SECTION> <SECTION> <SECTNO>§ 34.10</SECTNO> <SUBJECT>Collection methods.</SUBJECT> <P>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:</P> <P>(a) <E T="03">Administrative offset.</E> (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.</P> <P>(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.</P> <P>(3) Administrative offset under this subsection does not apply to debts specified in the FCCS, 31 CFR 901.3(a)(2).</P> <P>(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.</P> <P>(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.</P> <P>(6) <E T="03">Expedited offset.</E> STATE may effect an offset against a debtor prior to sending a notice to the debtor as described in § 34.8, when:</P> <P>(i) The offset is in the nature of a recoupment,</P> <P>(ii) Offset is executed pursuant to procedures set out in the Contracts Disputes Act,</P> <P>(iii) Previous notice and opportunity for review have been given, or</P> <P>(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.</P> <P>(7) Unless otherwise provided by law, administrative offset of payments under the authority of 31 U.S.C. 3716 to collect a debt may not be conducted more than 10 years after the Government's right to collect the debt first accrued, unless facts material to the Government's right to collect the debt were not known and could not reasonably have been known by the official charged with the responsibility to discover and collect such debts. This limitation does not apply to debts reduced to a judgment.</P> <P>(b) <E T="03">Referral to private collection agency.</E> 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.</P> <P>(c) <E T="03">Disclosure to consumer reporting agencies.</E> 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.</P> <P>(d) Liquidation of Collateral, if applicable, in accordance with the FCCS, 31 CFR 901.7.</P> <P>(e) Suspension or revocation of eligibility for loans and loan guaranties, licenses, permits, or privileges in accordance with the FCCS, 31 CFR 901.6.<PRTPAGE P="113"/> </P> <P>(f) <E T="03">Litigation</E>. 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.</P> <P>(g) <E T="03">Transfer to FMS</E>. 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.</P> <P>(h) <E T="03">Administrative wage garnishment</E>. 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).</P> <P>(i) <E T="03">Salary offset</E>. See subpart C of this part.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Salary Offset</HD> <SECTION> <SECTNO>§ 34.11</SECTNO> <SUBJECT>Scope.</SUBJECT> <P>(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.</P> <P>(b) This subpart applies to:</P> <P>(1) Current employees of STATE and other agencies who owe debts to STATE;</P> <P>(2) Current employees of STATE who owe debts to other agencies.</P> <P>(c) This subpart does not apply to</P> <P>(1) Offset of a separating employee's final payments or Foreign Service annuity payments which are covered under administrative offset (See § 34.10(a)),</P> <P>(2) Debts or claims arising under the Internal Revenue Code of 1954 (26 U.S.C. 1 <E T="03">et seq.</E>); the Social Security Act (42 U.S.C. 301 <E T="03">et seq.</E>); the tariff laws of the United States.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 34.12</SECTNO> <SUBJECT>Coordinating offset with another Federal agency.</SUBJECT> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <PRTPAGE P="114"/> <SECTNO>§ 34.13</SECTNO> <SUBJECT>Notice requirements before offset.</SUBJECT> <P>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 first class mail to the last known address that is available to the Department and will state:</P> <P>(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;</P> <P>(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;</P> <P>(c) The amount, frequency, approximate beginning date, and duration of the intended deductions;</P> <P>(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);</P> <P>(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;</P> <P>(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;</P> <P>(g) <E T="03">Right to an internal review or outside hearing.</E> (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.</P> <P>(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 (<E T="03">i.e.</E>, the percentage of disposable pay to be deducted each pay period);</P> <P>(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;</P> <P>(i) The method and time period for requesting an internal review or outside hearing;</P> <P>(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;</P> <P>(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);</P> <P>(l) Any other rights and remedies available to the employee under statutes or regulations governing the program for which the collection is being made;</P> <P>(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</P> <P>(n) The name and address of the STATE official to whom communications should be directed.</P> </SECTION> <SECTION> <SECTNO>§ 34.14</SECTNO> <SUBJECT>Request for an outside hearing for certain debts.</SUBJECT> <P>(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:</P> <P>(1) The existence or amount of the debt; or<PRTPAGE P="115"/> </P> <P>(2) STATE's proposed offset schedule.</P> <P>(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.</P> <P>(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.</P> <P>(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).</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 34.15</SECTNO> <SUBJECT>Outside hearings.</SUBJECT> <P>(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.</P> <P>(b) Outside hearings shall be conducted by a hearing official not under the supervision or control of STATE.</P> <P>(c) <E T="03">Procedure.</E> (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.</P> <P>(2) <E T="03">Oral hearing</E>. 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.</P> <P>(3) <E T="03">Paper hearing</E>. 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.</P> <P>(4) <E T="03">Record</E>. 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.</P> <P>(5) <E T="03">Content of decision</E>. The written decision shall include:</P> <P>(i) A statement of the facts presented to support the origin, nature, and amount of the debt;</P> <P>(ii) The hearing official's findings, analysis, and conclusions; and</P> <P>(iii) The terms of any repayment schedules, or the date salary offset will commence, if applicable.</P> <P>(6) <E T="03">Failure to appear.</E> 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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 34.16</SECTNO> <SUBJECT>Procedures for salary offset.</SUBJECT> <P>Unless otherwise provided by statute or contract, the following procedures apply to salary offset:</P> <P>(a) <E T="03">Method</E>. 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.<PRTPAGE P="116"/> </P> <P>(b) <E T="03">Source</E>. The source of salary offset is current disposable pay.</P> <P>(c) <E T="03">Types of collection</E>. (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.</P> <P>(2) <E T="03">Installment deductions.</E> (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.</P> <P>(ii) Installment payments of less than $25 per pay period will be accepted only in the most unusual circumstances.</P> <P>(iii) Installment deductions will be made over a period of not greater than the anticipated period of employment.</P> </SECTION> <SECTION> <SECTNO>§ 34.17</SECTNO> <SUBJECT>Non-waiver of rights by payments.</SUBJECT> <P>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.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Collection Adjustments</HD> <SECTION> <SECTNO>§ 34.18</SECTNO> <SUBJECT>Waivers of indebtedness.</SUBJECT> <P>(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.</P> <P>(b) <E T="03">Authorities</E>—(1) <E T="03">Debts arising out of erroneous payments of pay and allowances.</E> 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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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:</P> <P>(A) Whether collection of the claim would cause serious financial hardship to the employee from whom collection is sought.</P> <P>(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.<PRTPAGE P="117"/> </P> <P>(C) The time elapsed between the erroneous payment and discovery of the error and notification of the employee;</P> <P>(D) Whether failure to make restitution would result in unfair gain to the employee;</P> <P>(E) Whether recovery of the claim would be unconscionable under the circumstances.</P> <P>(2) <E T="03">Debts arising out of advances in pay.</E> 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.</P> <P>(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:</P> <P>(A) Death of the employee;</P> <P>(B) Retirement of the employee for disability;</P> <P>(C) Inability of the employee to return to duty because of disability (supported by an acceptable medical certificate); and</P> <P>(D) Whether failure to repay would result in unfair gain to the employee.</P> <P>(ii) [Reserved]</P> <P>(3) <E T="03">Debts arising out of advances in situations of authorized or ordered departures.</E> 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.</P> <P>(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:</P> <P>(A) Death of the employee;</P> <P>(B) Retirement of the employee for disability;</P> <P>(C) Inability of the employee to return to duty because of disability (supported by an acceptable medical certificate); and</P> <P>(D) Whether failure to repay would result in unfair gain to the employee.</P> <P>(ii) [Reserved]</P> <P>(4) <E T="03">Debts arising out of advances of allowances and differentials for employees stationed abroad.</E> 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.</P> <P>(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:</P> <P>(A) Death of the employee;</P> <P>(B) Retirement of the employee for disability;</P> <P>(C) Inability of the employee to return to duty because of disability (supported by an acceptable medical certificate); and</P> <P>(D) Whether failure to repay would result in unfair gain to the employee.</P> <P>(ii) [Reserved]</P> <P>(5) <E T="03">Debts arising out of employee training expenses.</E> 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.</P> <P>(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:</P> <P>(A) Death of the employee;</P> <P>(B) Retirement of the employee for disability;</P> <P>(C) Inability of the employee to return to duty because of disability (supported by an acceptable medical certificate); and</P> <P>(D) Whether failure to repay would result in unfair gain to the employee.</P> <P>(ii) [Reserved]</P> <P>(6) <E T="03">Under-withholding of life insurance premiums.</E> 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.</P> <P>(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 <PRTPAGE P="118"/>that an error existed but failed to take corrective action.</P> <P>(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:</P> <P>(A) Whether collection of the claim would cause serious financial hardship to the individual from whom collection is sought.</P> <P>(B) The time elapsed between the failure to properly withhold and discovery of the failure and notification of the individual;</P> <P>(C) Whether failure to make restitution would result in unfair gain to the individual;</P> <P>(D) Whether recovery of the claim would be unconscionable under the circumstances.</P> <P>(7) <E T="03">Overpayments of Foreign Service annuities.</E> 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.</P> <P>(8) As otherwise provided by law.</P> <P>(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.</P> <P>(d) The burden is on the employee to demonstrate that the applicable waiver standard has been met.</P> <P>(e) <E T="03">Requests.</E> 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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 34.19</SECTNO> <SUBJECT>Compromise.</SUBJECT> <P>STATE may attempt to effect compromise in accordance with the standards set forth in the FCCS, 31 CFR part 902.</P> </SECTION> <SECTION> <SECTNO>§ 34.20</SECTNO> <SUBJECT>Suspension.</SUBJECT> <P>The suspension of collection action shall be made in accordance with the standards set forth in the FCCS, 31 CFR 903.1-903.2</P> </SECTION> <SECTION> <SECTNO>§ 34.21</SECTNO> <SUBJECT>Termination.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 34.22</SECTNO> <SUBJECT>Discharge.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 34.23</SECTNO> <SUBJECT>Bankruptcy.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 34.24</SECTNO> <SUBJECT>Refunds.</SUBJECT> <P>(a) STATE will refund promptly to the appropriate individual amounts offset under this regulation when:</P> <P>(1) A debt is waived or otherwise found not owing the United States (unless expressly prohibited by statute or regulation); or</P> <P>(2) STATE is directed by an administrative or judicial order to make a refund.</P> <P>(b) Refunds do not bear interest unless required or permitted by law or contract.</P> </SECTION> </SUBPART> </PART> <PART> <PRTPAGE P="119"/> <EAR>Pt. 35</EAR> <HD SOURCE="HED">PART 35—PROGRAM FRAUD CIVIL REMEDIES</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>35.1</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>35.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>35.3</SECTNO> <SUBJECT>Basis for civil penalties and assessments.</SUBJECT> <SECTNO>35.4</SECTNO> <SUBJECT>Investigation.</SUBJECT> <SECTNO>35.5</SECTNO> <SUBJECT>Review by the reviewing official.</SUBJECT> <SECTNO>35.6</SECTNO> <SUBJECT>Prerequisites for issuing a complaint.</SUBJECT> <SECTNO>35.7</SECTNO> <SUBJECT>Complaint.</SUBJECT> <SECTNO>35.8</SECTNO> <SUBJECT>Service of complaint.</SUBJECT> <SECTNO>35.9</SECTNO> <SUBJECT>Answer.</SUBJECT> <SECTNO>35.10</SECTNO> <SUBJECT>Default upon failure to file an answer.</SUBJECT> <SECTNO>35.11</SECTNO> <SUBJECT>Referral of complaint and answer to the ALJ.</SUBJECT> <SECTNO>35.12</SECTNO> <SUBJECT>Notice of hearing.</SUBJECT> <SECTNO>35.13</SECTNO> <SUBJECT>Parties to the hearing.</SUBJECT> <SECTNO>35.14</SECTNO> <SUBJECT>Separation of functions.</SUBJECT> <SECTNO>35.15</SECTNO> <SUBJECT>Ex parte contacts.</SUBJECT> <SECTNO>35.16</SECTNO> <SUBJECT>Disqualification of reviewing official or ALJ.</SUBJECT> <SECTNO>35.17</SECTNO> <SUBJECT>Rights of parties.</SUBJECT> <SECTNO>35.18</SECTNO> <SUBJECT>Authority of the ALJ.</SUBJECT> <SECTNO>35.19</SECTNO> <SUBJECT>Prehearing conferences.</SUBJECT> <SECTNO>35.20</SECTNO> <SUBJECT>Disclosure of documents.</SUBJECT> <SECTNO>35.21</SECTNO> <SUBJECT>Discovery.</SUBJECT> <SECTNO>35.22</SECTNO> <SUBJECT>Exchange of witness lists, statements and exhibits.</SUBJECT> <SECTNO>35.23</SECTNO> <SUBJECT>Subpoenas for attendance at hearing.</SUBJECT> <SECTNO>35.24</SECTNO> <SUBJECT>Protective order.</SUBJECT> <SECTNO>35.25</SECTNO> <SUBJECT>Fees.</SUBJECT> <SECTNO>35.26</SECTNO> <SUBJECT>Form, filing and service of papers.</SUBJECT> <SECTNO>35.27</SECTNO> <SUBJECT>Computation of time.</SUBJECT> <SECTNO>35.28</SECTNO> <SUBJECT>Motions.</SUBJECT> <SECTNO>35.29</SECTNO> <SUBJECT>Sanctions.</SUBJECT> <SECTNO>35.30</SECTNO> <SUBJECT>The hearing and burden of proof.</SUBJECT> <SECTNO>35.31</SECTNO> <SUBJECT>Determining the amount of penalties and assessments.</SUBJECT> <SECTNO>35.32</SECTNO> <SUBJECT>Location of hearing.</SUBJECT> <SECTNO>35.33</SECTNO> <SUBJECT>Witnesses.</SUBJECT> <SECTNO>35.34</SECTNO> <SUBJECT>Evidence.</SUBJECT> <SECTNO>35.35</SECTNO> <SUBJECT>The record.</SUBJECT> <SECTNO>35.36</SECTNO> <SUBJECT>Post-hearing briefs.</SUBJECT> <SECTNO>35.37</SECTNO> <SUBJECT>Initial decision.</SUBJECT> <SECTNO>35.38</SECTNO> <SUBJECT>Reconsideration of initial decision.</SUBJECT> <SECTNO>35.39</SECTNO> <SUBJECT>Appeal to authority head.</SUBJECT> <SECTNO>35.40</SECTNO> <SUBJECT>Stays ordered by the Department of Justice.</SUBJECT> <SECTNO>35.41</SECTNO> <SUBJECT>Stay pending appeal.</SUBJECT> <SECTNO>35.42</SECTNO> <SUBJECT>Judicial review.</SUBJECT> <SECTNO>35.43</SECTNO> <SUBJECT>Collection of civil penalties and assessments.</SUBJECT> <SECTNO>35.44</SECTNO> <SUBJECT>Right to administrative offset.</SUBJECT> <SECTNO>35.45</SECTNO> <SUBJECT>Deposit in Treasury of United States.</SUBJECT> <SECTNO>35.46</SECTNO> <SUBJECT>Compromise or settlement.</SUBJECT> <SECTNO>35.47</SECTNO> <SUBJECT>Limitations.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>31 U.S.C. 3801-3812.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>55 FR 23424, June 8, 1990, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 35.1</SECTNO> <SUBJECT>General.</SUBJECT> <P>(a) <E T="03">Basis.</E> 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.</P> <P>(b) <E T="03">Purpose.</E> 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.</P> <P>(c) <E T="03">Special considerations abroad.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 35.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>(a) <E T="03">ALJ</E> 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.</P> <P>(b) <E T="03">Authority</E> means the United States Department of State.</P> <P>(c) <E T="03">Authority head</E> means the Under Secretary for Management.</P> <P>(d) <E T="03">Benefit</E> 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.</P> <P>(e) <E T="03">Claim</E> means any request, demand, or submission—</P> <P>(1) Made to the authority for property, services, or money (including money representing grants, loans, insurance, or benefits);</P> <P>(2) Made to a recipient of property, services, or money from the authority or to a party to a contract with the authority—</P> <P>(i) For property or services if the United States—</P> <P>(A) Provided such property or services;<PRTPAGE P="120"/> </P> <P>(B) Provided any portion of the funds for the purchase of such property or services; or</P> <P>(C) Will reimburse such recipient or party for the purchase of such property or services; or</P> <P>(ii) For the payment of money (including money representing grants, loans, insurance or benefits) if the United States—</P> <P>(A) Provided any portion of the money requested or demanded; or</P> <P>(B) Will reimburse such recipient or party for any portion of the money paid on such request or demand; or</P> <P>(3) Made to the authority which has the effect of decreasing an obligation to pay or account for property, services or money.</P> <P>(f) <E T="03">Complaint</E> means the administrative complaint served by the reviewing official on the defendant under § 35.7.</P> <P>(g) <E T="03">Defendant</E> means any person alleged in a complaint under § 35.7 to be liable for a civil penalty or assessment under § 35.3.</P> <P>(h) <E T="03">Department</E> means the Department of State.</P> <P>(i) <E T="03">Government</E> means the United States Government.</P> <P>(j) <E T="03">Individual</E> means a natural person.</P> <P>(k) <E T="03">Initial decision</E> 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.</P> <P>(l) <E T="03">Investigating official</E> 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.</P> <P>(m) <E T="03">Knows or has reason to know</E> means that a person, with respect to a claim or statement—</P> <P>(1) Has actual knowledge that the claim or statement is false, fictitious, or fraudulent;</P> <P>(2) Acts in deliberate ignorance of the truth or falsity of the claim or statement; or</P> <P>(3) Acts in reckless disregard of the truth or falsity of the claim or statement.</P> <P>(n) <E T="03">Makes,</E> wherever it appears, shall include the terms presents, submits, and causes to be made, presented, or submitted. As the context requires, <E T="03">making</E> or <E T="03">made,</E> shall likewise include the corresponding forms of such terms.</P> <P>(o) <E T="03">Person</E> means any individual, partnership, corporation, association or private organization, and includes the plural of the term.</P> <P>(p) <E T="03">Representative</E> 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.</P> <P>(q) <E T="03">Representative for the Authority</E> means the Counsel to the Inspector General.</P> <P>(r) <E T="03">Reviewing official</E> means the chief Financial Officer of the Department or her or his designee who is—</P> <P>(1) Not subject to supervision by, or required to report to, the investigating official;</P> <P>(2) Not employed in the organizational unit of the authority in which the investigating official is employed; and</P> <P>(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.</P> <P>(s) <E T="03">Statement</E> means any representation, certification, affirmation, document, record, or accounting or bookkeeping entry made—</P> <P>(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</P> <P>(2) With respect to (including relating to eligibility for)—</P> <P>(i) A contract with, or a bid or proposal for a contract with; or</P> <P>(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.</P> </SECTION> <SECTION> <PRTPAGE P="121"/> <SECTNO>§ 35.3</SECTNO> <SUBJECT>Basis for civil penalties and assessments.</SUBJECT> <P>(a) <E T="03">Claims.</E> (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 $5,000 for each such claim:</P> <P>(i) Is false, fictitious, or fraudulent;</P> <P>(ii) Includes or is supported by any written statement which asserts a material fact which is false, fictitious, or fraudulent;</P> <P>(iii) Includes or is supported by any written statement that—</P> <P>(A) Omits a material fact;</P> <P>(B) Is false, fictitious, or fraudulent as a result of such omission; and</P> <P>(C) Is a statement in which the person making the statement has a duty to include such material fact; or</P> <P>(iv) Is for payment for the provision of property or services which the person has not provided as claimed.</P> <P>(2) Each voucher, invoice, claim form, or other individual request or demand for property, services, or money constitutes a separate claim.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(b) <E T="03">Statements.</E> (1) Except as provided in paragraph (c) of this section, any person who makes a written statement that—</P> <P>(i) The person knows or has reason to know—</P> <P>(A) Asserts a material fact which is false, fictitious, or fraudulent; or</P> <P>(B) Is false, fictitious, or fraudulent because it omits a mateial fact that the person making the statment has a duty to include in such statement; and</P> <P>(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 $5,000 for each such statement.</P> <P>(2) Each written representation, certification, or affirmation constitutes a separate statement.</P> <P>(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.</P> <P>(c) No proof of specific intent to defraud is required to establish liability under this section.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 35.4</SECTNO> <SUBJECT>Investigation.</SUBJECT> <P>(a) If an investigating official concludes that a subpoena pursuant to the authority conferred by 31 U.S.C. 3804(a) is warranted—</P> <P>(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 <PRTPAGE P="122"/>for such service), and shall identify the records or documents sought;</P> <P>(2) The investigating official may designate a person to act on his or her behalf to receive the documents sought; and</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(d) Nothing in this section modifies any responsibility of an investigating official to report violations of criminal law to the Attorney General.</P> </SECTION> <SECTION> <SECTNO>§ 35.5</SECTNO> <SUBJECT>Review by the reviewing official.</SUBJECT> <P>(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.</P> <P>(b) Such notice shall include—</P> <P>(1) A statement of the reviewing official's reasons for issuing a complaint;</P> <P>(2) A statement specifying the evidence that supports the allegations of liability;</P> <P>(3) A description of the claims or statements upon which the allegations of liability are based;</P> <P>(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;</P> <P>(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</P> <P>(6) A statement that there is a reasonable prospect of collecting an appropriate amount of penalties and assessments.</P> </SECTION> <SECTION> <SECTNO>§ 35.6</SECTNO> <SUBJECT>Prerequisites for issuing a complaint.</SUBJECT> <P>(a) The reviewing official may issue a complaint under § 35.7 only if—</P> <P>(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</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 35.7</SECTNO> <SUBJECT>Complaint.</SUBJECT> <P>(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 <PRTPAGE P="123"/>may serve a complaint on the defendant, as provided in § 35.8.</P> <P>(b) The complaint shall state—</P> <P>(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;</P> <P>(2) The maximum amount of penalties and assessments for which the defendant may be held liable;</P> <P>(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</P> <P>(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.</P> <P>(c) At the same time the reviewing official serves the complaint, he or she shall serve the defendant with a copy of these regulations.</P> </SECTION> <SECTION> <SECTNO>§ 35.8</SECTNO> <SUBJECT>Service of complaint.</SUBJECT> <P>(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.</P> <P>(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—</P> <P>(1) Affidavit of the individual serving the complaint by delivery;</P> <P>(2) A United States Postal Service return receipt card acknowledging receipt;</P> <P>(3) Written acknowledgment of receipt by the defendant or his or her representative; or</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 35.9</SECTNO> <SUBJECT>Answer.</SUBJECT> <P>(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.</P> <P>(b) In the answer, the defendant—</P> <P>(1) Shall admit or deny each of the allegations of liability made in the complaint;</P> <P>(2) Shall state any defense on which the defendant intends to rely;</P> <P>(3) May state any reasons why the defendant contends that the penalties and assessments should be less than the statutory maximum; and</P> <P>(4) Shall state the name, address and telephone number of the person authorized by the defendant to act as defendant's representative, if any.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 35.10</SECTNO> <SUBJECT>Default upon failure to file an answer.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.<PRTPAGE P="124"/> </P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 35.11</SECTNO> <SUBJECT>Referral of complaint and answer to the ALJ.</SUBJECT> <P>Upon receipt of an answer, the reviewing official shall file the complaint and answer with the ALJ.</P> </SECTION> <SECTION> <SECTNO>§ 35.12</SECTNO> <SUBJECT>Notice of hearing.</SUBJECT> <P>(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.</P> <P>(b) Such notice shall include—</P> <P>(1) The tentative time and place, and the nature of the hearing;</P> <P>(2) The legal authority and jurisdiction under which the hearing is to be held;</P> <P>(3) The matters of fact and law to be asserted;</P> <P>(4) A description of the procedures for the conduct of the hearing;</P> <P>(5) The name, address, and telephone number of the representative of the Government and of the defendant, if any; and</P> <P>(6) Such other matters as the ALJ deems appropriate.</P> </SECTION> <SECTION> <SECTNO>§ 35.13</SECTNO> <SUBJECT>Parties to the hearing.</SUBJECT> <P>(a) The parties to the hearing shall be the defendant and the Authority.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 35.14</SECTNO> <SUBJECT>Separation of functions.</SUBJECT> <P>(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—</P> <P>(1) Participate in the hearing as the ALJ;</P> <P>(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<PRTPAGE P="125"/> </P> <P>(3) Make the collection of penalties and assessments under 31 U.S.C. 3806.</P> <P>(b) The ALJ shall not be responsible to, or subject to the supervision or direction of the investigating official or the reviewing official.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 35.15</SECTNO> <SUBJECT>Ex parte contacts.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 35.16</SECTNO> <SUBJECT>Disqualification of reviewing official or ALJ.</SUBJECT> <P>(a) A reviewing official or ALJ in a particular case may disqualify herself or himself at any time.</P> <P>(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.</P> <P>(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</P> <P>(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.</P> <P>(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.</P> <P>(f) If the ALJ—</P> <P>(1) Determines that a reviewing official is disqualified, the ALJ shall dismiss the complaint without prejudice;</P> <P>(2) Disqualifies himself or herself, the case shall be reassigned promptly to another ALJ; or</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 35.17</SECTNO> <SUBJECT>Rights of parties.</SUBJECT> <P>Except as otherwise limited by this part, all parties may—</P> <P>(a) Be accompanied, represented, and advised by a representative;</P> <P>(b) Participate in any conference held by the ALJ;</P> <P>(c) Conduct discovery;</P> <P>(d) Agree to stipulations of fact or law, which shall be made part of the record;</P> <P>(e) Present evidence relevant to the issues at the hearing;</P> <P>(f) Present and cross-examine witnesses;</P> <P>(g) Present oreal arguments at the hearing as permitted by the ALJ; and</P> <P>(h) Submit written briefs and proposed findings of fact and conclusions of law after the hearing.</P> </SECTION> <SECTION> <SECTNO>§ 35.18</SECTNO> <SUBJECT>Authority of the ALJ.</SUBJECT> <P>(a) The ALJ shall conduct a fair and impartial hearing, avoid delay, maintain order, and assure that a record of the proceeding is made.</P> <P>(b) The ALJ has the authority to—</P> <P>(1) Set and change the date, time, and place of the hearing upon reasonable notice to the parties;</P> <P>(2) Continue or recess the hearing in whole or in part for a reasonable period of time;</P> <P>(3) Hold conferences to identify or simplify the issues, or to consider other matters that may aid in the expeditious disposition of the proceeding;</P> <P>(4) Administer oaths and affirmations;</P> <P>(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;<PRTPAGE P="126"/> </P> <P>(6) Rule on motions and other procedural matters;</P> <P>(7) Regulate the scope and timing of discovery;</P> <P>(8) Regulate the course of the hearing and the conduct of representatives and parties;</P> <P>(9) Examine witnesses;</P> <P>(10) Receive, rule on, exclude, or limit evidence;</P> <P>(11) Upon motion of a party, take official notice of facts;</P> <P>(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;</P> <P>(13) Conduct any conference, argument, or hearing on motions in person or by telephone; and</P> <P>(14) Exercise such other authority as is necessary to carry out the responsibilities of the ALJ under this part.</P> <P>(c) The ALJ does not have the authority to find treaties and other international agreements or federal statutes or regulations invalid.</P> </SECTION> <SECTION> <SECTNO>§ 35.19</SECTNO> <SUBJECT>Prehearing conferences.</SUBJECT> <P>(a) The ALJ may schedule prehearing conferences as appropriate.</P> <P>(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.</P> <P>(c) The ALJ may use prehearing conferences to discuss the following:</P> <P>(1) Simplification of the issues;</P> <P>(2) The necessity or desirability of amendments to the pleadings, including the need for a more definite statement;</P> <P>(3) Stipulations and admissions of fact or as to the contents and authenticity of documents;</P> <P>(4) Whether the parties can agree to submission of the case on a stipulated record;</P> <P>(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;</P> <P>(6) Limitation of the number of witnesses;</P> <P>(7) Scheduling dates for the exchange of witness lists and of proposed exhibits;</P> <P>(8) Discovery;</P> <P>(9) The time and place for the hearing; and</P> <P>(10) Such other matters as may tend to expedite the fair and just disposition of the proceedings.</P> <P>(d) The ALJ may issue an order containing all matters agreed upon by the parties or ordered by the ALJ at a prehearing conference.</P> </SECTION> <SECTION> <SECTNO>§ 35.20</SECTNO> <SUBJECT>Disclosure of documents.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(c) The notice sent to the Attorney General from the reviewing official as described in § 35.5 is not discoverable under any circumstances.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 35.21</SECTNO> <SUBJECT>Discovery.</SUBJECT> <P>(a) The following types of discovery are authorized:</P> <P>(1) Requests for production of documents for inspection and copying;</P> <P>(2) Requests for admissions of the authenticity of any relevant document or of the truth of any relevant fact;</P> <P>(3) Written interrogatories; and</P> <P>(4) Depositions.<PRTPAGE P="127"/> </P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(3) The ALJ may grant a motion for discovery only if he finds that the discovery sought—</P> <P>(i) Is necessary for the expeditious, fair, and reasonable consideration of the issues;</P> <P>(ii) Is not unduly costly or burdensome;</P> <P>(iii) Will not unduly delay the proceeding; and</P> <P>(iv) Does not seek privileged or classified information.</P> <P>(4) The burden of showing that discovery should be allowed is on the party seeking discovery.</P> <P>(5) The ALJ may grant discovery subject to a protective order under § 35.24.</P> <P>(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.</P> <P>(2) The party seeking to depose shall serve the subpoena in the manner prescribed in § 35.8.</P> <P>(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.</P> <P>(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.</P> <P>(f) Each party shall bear its own costs of discovery.</P> </SECTION> <SECTION> <SECTNO>§ 35.22</SECTNO> <SUBJECT>Exchange of witness lists, statements and exhibits.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 35.23</SECTNO> <SUBJECT>Subpoenas for attendance at hearing.</SUBJECT> <P>(a) A party wishing to procure the appearance and testimony of any individual at the hearing may request that the ALJ issue a subpoena.</P> <P>(b) A subpoena requiring the attendance and testimony of an individual may also require the individual to produce documents at the hearing.</P> <P>(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.<PRTPAGE P="128"/> </P> <P>(d) The subpoena shall specify the time and place at which the witness is to appear and any documents the witness is to produce.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 35.24</SECTNO> <SUBJECT>Protective order.</SUBJECT> <P>(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.</P> <P>(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:</P> <P>(1) That the discovery not be had;</P> <P>(2) That the discovery may be had only on specified terms and conditions, including a designation of the time or place;</P> <P>(3) That the discovery may be had only through a method of discovery other than that requested;</P> <P>(4) That certain matters not be inquired into, or that the scope of discovery be limited to certain matters;</P> <P>(5) That discovery be conducted with no one present except persons designated by the ALJ;</P> <P>(6) That the contents of discovery or evidence be sealed;</P> <P>(7) That a deposition after being sealed be opened only by order of the ALJ;</P> <P>(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</P> <P>(9) That the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the ALJ.</P> </SECTION> <SECTION> <SECTNO>§ 35.25</SECTNO> <SUBJECT>Fees.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 35.26</SECTNO> <SUBJECT>Form, filing and service of papers.</SUBJECT> <P>(a) <E T="03">Form.</E> (1) Documents filed with the ALJ shall include an original and two copies.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(b) <E T="03">Service.</E> 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.</P> <P>(c) <E T="03">Proof of service.</E> A certificate of the individual serving the document by personal delivery or by mail, setting <PRTPAGE P="129"/>forth the manner of service, shall be proof of service.</P> </SECTION> <SECTION> <SECTNO>§ 35.27</SECTNO> <SUBJECT>Computation of time.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 35.28</SECTNO> <SUBJECT>Motions.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(e) The ALJ shall make a reasonable effort to dispose of all outstanding motions prior to the beginning of the hearing.</P> </SECTION> <SECTION> <SECTNO>§ 35.29</SECTNO> <SUBJECT>Sanctions.</SUBJECT> <P>(a) The ALJ may sanction a person, including any party or representative for—</P> <P>(1) Failing to comply with an order, rule, or procedure governing the proceeding;</P> <P>(2) Failing to prosecute or defend an action; or</P> <P>(3) Engaging in other misconduct that interferes with the speedy, orderly, or fair conduct of the hearing.</P> <P>(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.</P> <P>(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—</P> <P>(1) Draw an inference in favor of the requesting party with regard to the information sought;</P> <P>(2) In the case of requests for admission, deem each matter of which an admission is requested to be admitted;</P> <P>(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</P> <P>(4) Strike any part of the pleadings or other submissions of the party failing to comply with such request.</P> <P>(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.</P> <P>(e) The ALJ may refuse to consider any motion, request, response, brief or other document which is not filed in a timely fashion.</P> </SECTION> <SECTION> <SECTNO>§ 35.30</SECTNO> <SUBJECT>The hearing and burden of proof.</SUBJECT> <P>(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.</P> <P>(b) The authority shall prove defendant's liability and any aggravating factors by a preponderance of the evidence.</P> <P>(c) The defendant shall prove any affirmative defenses and any mitigating factors by a preponderance of the evidence.<PRTPAGE P="130"/> </P> <P>(d) The hearing shall be open to the public unless otherwise ordered by the ALJ for good cause shown.</P> </SECTION> <SECTION> <SECTNO>§ 35.31</SECTNO> <SUBJECT>Determining the amount of penalties and assessments.</SUBJECT> <P>(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.</P> <P>(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 (<E T="03">i.e.,</E> the false, fictitious, or fraudulent claims or statements) charged in the complaint:</P> <P>(1) The number of false, fictitious, or fraudulent claims or statements;</P> <P>(2) The time period over which such claims or statements were made;</P> <P>(3) The degree of the defendant's culpability with respect to the misconduct;</P> <P>(4) The amount of money or the value of the property, services, or benefit falsely claimed;</P> <P>(5) The value of the Government's actual loss as a result of the misconduct, including foreseeable consequential damages and the costs of investigation;</P> <P>(6) The relationship of the amount imposed as civil penalties to the amount of the Government's loss;</P> <P>(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;</P> <P>(8) Whether the defendant has engaged in a pattern of the same or similar misconduct;</P> <P>(9) Whether the defendant attempted to conceal the misconduct;</P> <P>(10) The degree to which the defendant has involved others in the misconduct or in concealing it;</P> <P>(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;</P> <P>(12) Whether the defendant cooperated in or obstructed an investigation of the misconduct;</P> <P>(13) Whether the defendant assisted in identifying and prosecuting other wrongdoers;</P> <P>(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;</P> <P>(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</P> <P>(16) The need to deter the defendant and others from engaging in the same or similar misconduct.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 35.32</SECTNO> <SUBJECT>Location of hearing.</SUBJECT> <P>(a) The hearing may be held—</P> <P>(1) In any judicial district of the United States in which the defendant resides or transacts business;</P> <P>(2) In any judicial district of the United States in which the claim or statement in issue was made; or</P> <P>(3) In such other place within the United States as may be agreed upon by the defendant and the ALJ.</P> <P>(b) Each party shall have the opportunity to present argument with respect to the location of the hearing.</P> <P>(c) The hearing shall be held at the place and at the time ordered by the ALJ.</P> </SECTION> <SECTION> <SECTNO>§ 35.33</SECTNO> <SUBJECT>Witnesses.</SUBJECT> <P>(a) Except as provided in paragraph (b) of this section, testimony at the <PRTPAGE P="131"/>hearing shall be given orally by witnesses under oath or affirmation.</P> <P>(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).</P> <P>(c) The ALJ shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence in order to make—</P> <P>(1) The interrogation and presentation effective for the ascertainment of the truth;</P> <P>(2) To avoid needless consumption of time; and</P> <P>(3) To protect witnesses from harassment or undue embarrassment.</P> <P>(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.</P> <P>(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.</P> <P>(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—</P> <P>(1) A party who is an individual;</P> <P>(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</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 35.34</SECTNO> <SUBJECT>Evidence.</SUBJECT> <P>(a) The ALJ shall determine the admissibility of evidence.</P> <P>(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.</P> <P>(c) The ALJ shall exclude irrelevant and immaterial evidence.</P> <P>(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.</P> <P>(e) Although relevant, evidence may be excluded if it is classified or otherwise privileged under Federal law.</P> <P>(f) Evidence concerning offers or compromise or settlement shall be inadmissible to the extent provided in Rule 408 of the Federal Rules of Evidence.</P> <P>(g) The ALJ shall permit the parties to introduce rebuttal witnesses and evidence.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 35.35</SECTNO> <SUBJECT>The record.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 35.36</SECTNO> <SUBJECT>Post-hearing briefs.</SUBJECT> <P>The ALJ may require the parties to file post-hearing briefs. In any event, any party may file a post-hearing brief. <PRTPAGE P="132"/>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.</P> </SECTION> <SECTION> <SECTNO>§ 35.37</SECTNO> <SUBJECT>Initial decision.</SUBJECT> <P>(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.</P> <P>(b) The findings of fact shall include a finding on each of the following issues:</P> <P>(1) Whether the claims or statements identified in the complaint, or any portions thereof, violate § 35.3; and</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 35.38</SECTNO> <SUBJECT>Reconsideration of initial decision.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(c) Responses to such motions shall be allowed only upon request of the ALJ.</P> <P>(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.</P> <P>(e) The ALJ may dispose of a motion for reconsideration by denying it or by issuing a revised initial decision.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 35.39</SECTNO> <SUBJECT>Appeal to authority head.</SUBJECT> <P>(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.</P> <P>(b)(1) No notice of appeal may be filed until the time period for filing a motion for reconsideration under § 35.38 has expired.</P> <P>(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.</P> <P>(3) If no motion for reconsideration is timely filed, a notice of appeal must be <PRTPAGE P="133"/>filed within 30 days after the ALJ issues the initial decision.</P> <P>(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.</P> <P>(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.</P> <P>(d) A notice of appeal shall be accompanied by a written brief specifying exceptions to the initial decision and reasons supporting the exceptions.</P> <P>(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.</P> <P>(f) There is no right to appear personally before the authority head.</P> <P>(g) There is no right to appeal any interlocutory ruling by the ALJ.</P> <P>(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.</P> <P>(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.</P> <P>(j) The authority head may affirm, reduce, reverse, compromise, remand, or settle any penalty or assessment, determined by the ALJ in any initial decision.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 35.40</SECTNO> <SUBJECT>Stays ordered by the Department of Justice.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 35.41</SECTNO> <SUBJECT>Stay pending appeal.</SUBJECT> <P>(a) An initial decision is stayed automatically pending disposition of a motion for reconsideration or of an appeal to the authority head.</P> <P>(b) No administrative stay is available following a final decision of the authority head.</P> </SECTION> <SECTION> <SECTNO>§ 35.42</SECTNO> <SUBJECT>Judicial review.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 35.43</SECTNO> <SUBJECT>Collection of civil penalties and assessments.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 35.44</SECTNO> <SUBJECT>Right to administrative offset.</SUBJECT> <P>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 <PRTPAGE P="134"/>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.</P> </SECTION> <SECTION> <SECTNO>§ 35.45</SECTNO> <SUBJECT>Deposit in Treasury of United States.</SUBJECT> <P>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).</P> </SECTION> <SECTION> <SECTNO>§ 35.46</SECTNO> <SUBJECT>Compromise or settlement.</SUBJECT> <P>(a) Parties may make offers of compromise or settlement at any time.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(f) Any compromise or settlement must be in writing.</P> </SECTION> <SECTION> <SECTNO>§ 35.47</SECTNO> <SUBJECT>Limitations.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(c) The statute of limitations may be extended by agreement of the parties.</P> </SECTION> </PART> </SUBCHAP> <SUBCHAP TYPE="P"> <PRTPAGE P="135"/> <HD SOURCE="HED">SUBCHAPTER E—VISAS</HD> <PART> <EAR>Pt. 40</EAR> <HD SOURCE="HED">PART 40—REGULATIONS PERTAINING TO BOTH NONIMMIGRANTS AND IMMIGRANTS UNDER THE IMMIGRATION AND NATIONALITY ACT, AS AMENDED</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—General Provisions</HD> <SECHD>Sec.</SECHD> <SECTNO>40.1</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>40.2</SECTNO> <SUBJECT>Documentation of nationals.</SUBJECT> <SECTNO>40.3</SECTNO> <SUBJECT>Entry into areas under U.S. administration.</SUBJECT> <SECTNO>40.4</SECTNO> <SUBJECT>Furnishing records and information from visa files for court proceedings.</SUBJECT> <SECTNO>40.5</SECTNO> <SUBJECT>Limitations on the use of National Crime Information Center (NCIC) criminal history information.</SUBJECT> <SECTNO>40.6</SECTNO> <SUBJECT>Basis for refusal.</SUBJECT> <SECTNO>40.7-40.8</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>40.9</SECTNO> <SUBJECT>Classes of inadmissible aliens.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Medical Grounds of Ineligibility</HD> <SECTNO>40.11</SECTNO> <SUBJECT>Medical grounds of ineligibility.</SUBJECT> <SECTNO>40.12-40.19</SECTNO> <SUBJECT>[Reserved]</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Criminal and Related Grounds—Conviction of Certain Crimes</HD> <SECTNO>40.21</SECTNO> <SUBJECT>Crimes involving moral turpitude and controlled substance violators.</SUBJECT> <SECTNO>40.22</SECTNO> <SUBJECT>Multiple criminal convictions.</SUBJECT> <SECTNO>40.23</SECTNO> <SUBJECT>Controlled substance traffickers. [Reserved]</SUBJECT> <SECTNO>40.24</SECTNO> <SUBJECT>Prostitution and commercialized vice.</SUBJECT> <SECTNO>40.25</SECTNO> <SUBJECT>Certain aliens involved in serious criminal activity who have asserted immunity from prosecution. [Reserved]</SUBJECT> <SECTNO>40.26-40.29</SECTNO> <SUBJECT>[Reserved]</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Security and Related Grounds</HD> <SECTNO>40.31</SECTNO> <SUBJECT>General. [Reserved]</SUBJECT> <SECTNO>40.32</SECTNO> <SUBJECT>Terrorist activities. [Reserved]</SUBJECT> <SECTNO>40.33</SECTNO> <SUBJECT>Foreign policy. [Reserved]</SUBJECT> <SECTNO>40.34</SECTNO> <SUBJECT>Immigrant membership in totalitarian party.</SUBJECT> <SECTNO>40.35</SECTNO> <SUBJECT>Participants in Nazi persecutions or genocide. [Reserved]</SUBJECT> <SECTNO>40.36-40.39</SECTNO> <SUBJECT>[Reserved]</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart E—Public Charge</HD> <SECTNO>40.41</SECTNO> <SUBJECT>Public charge.</SUBJECT> <SECTNO>40.42-40.49</SECTNO> <SUBJECT>[Reserved]</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart F—Labor Certification and Qualification for Certain Immigrants</HD> <SECTNO>40.51</SECTNO> <SUBJECT>Labor certification.</SUBJECT> <SECTNO>40.52</SECTNO> <SUBJECT>Unqualified physicians.</SUBJECT> <SECTNO>40.53</SECTNO> <SUBJECT>Uncertified foreign health-care workers.</SUBJECT> <SECTNO>40.54-40.59</SECTNO> <SUBJECT>[Reserved]</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart G—Illegal Entrants and Immigration Violators</HD> <SECTNO>40.61</SECTNO> <SUBJECT>Aliens present without admission or parole.</SUBJECT> <SECTNO>40.62</SECTNO> <SUBJECT>Failure to attend removal proceedings.</SUBJECT> <SECTNO>40.63</SECTNO> <SUBJECT>Misrepresentation; Falsely claiming citizenship.</SUBJECT> <SECTNO>40.64</SECTNO> <SUBJECT>Stowaways.</SUBJECT> <SECTNO>40.65</SECTNO> <SUBJECT>Smugglers.</SUBJECT> <SECTNO>40.66</SECTNO> <SUBJECT>Subject of civil penalty.</SUBJECT> <SECTNO>40.67</SECTNO> <SUBJECT>Student visa abusers.</SUBJECT> <SECTNO>40.68</SECTNO> <SUBJECT>Aliens subject to INA 222(g).</SUBJECT> <SECTNO>40.69</SECTNO> <SUBJECT>[Reserved]</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart H—Documentation Requirements</HD> <SECTNO>40.71</SECTNO> <SUBJECT>Documentation requirements for immigrants.</SUBJECT> <SECTNO>40.72</SECTNO> <SUBJECT>Documentation requirements for nonimmigrants.</SUBJECT> <SECTNO>40.73-40.79</SECTNO> <SUBJECT>[Reserved]</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart I—Ineligible for Citizenship</HD> <SECTNO>40.81</SECTNO> <SUBJECT>Ineligible for citizenship.</SUBJECT> <SECTNO>40.82</SECTNO> <SUBJECT>Alien who departed the United States to avoid service in the Armed Forces.</SUBJECT> <SECTNO>40.83-40.89</SECTNO> <SUBJECT>[Reserved]</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart J—Aliens Previously Removed</HD> <SECTNO>40.91</SECTNO> <SUBJECT>Certain aliens previously removed.</SUBJECT> <SECTNO>40.92</SECTNO> <SUBJECT>Aliens unlawfully present.</SUBJECT> <SECTNO>40.93</SECTNO> <SUBJECT>Aliens unlawfully present after previous immigration violation.</SUBJECT> <SECTNO>40.94-40.99</SECTNO> <SUBJECT>[Reserved]</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart K—Miscellaneous</HD> <SECTNO>40.101</SECTNO> <SUBJECT>Practicing polygamists.</SUBJECT> <SECTNO>40.102</SECTNO> <SUBJECT>Guardian required to accompany excluded alien.</SUBJECT> <SECTNO>40.103</SECTNO> <SUBJECT>International child abduction.</SUBJECT> <SECTNO>40.104</SECTNO> <SUBJECT>Unlawful voters.</SUBJECT> <SECTNO>40.105</SECTNO> <SUBJECT>Former citizens who renounced citizenship to avoid taxation.</SUBJECT> <SECTNO>40.106-40.110</SECTNO> <SUBJECT>[Reserved]</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart L—Failure to Comply with INA</HD> <SECTNO>40.201</SECTNO> <SUBJECT>Failure of application to comply with INA.</SUBJECT> <SECTNO>40.202</SECTNO> <SUBJECT>Certain former exchange visitors.</SUBJECT> <SECTNO>40.203</SECTNO> <SUBJECT>Alien entitled to A, E, or G nonimmigrant classification.</SUBJECT> <SECTNO>40.204</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>40.205</SECTNO> <SUBJECT>Applicant for immigrant visa under INA 203(c).<PRTPAGE P="136"/> </SUBJECT> <SECTNO>40.206</SECTNO> <SUBJECT>Frivolous applications. [Reserved]</SUBJECT> <SECTNO>40.207-40.210</SECTNO> <SUBJECT>[Reserved]</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart M—Waiver of Ground of Ineligibility</HD> <SECTNO>40.301</SECTNO> <SUBJECT>Waiver for ineligible nonimmigrants under INA 212(d)(3)(A).</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>8 U.S.C. 1104.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>56 FR 30422, July 2, 1991, unless otherwise noted.</P> </SOURCE> <EDNOTE> <HD SOURCE="HED">Editorial Note:</HD> <P>Nomenclature changes to part 40 appear at 71 FR 34520 and 34521, June 15, 2006.</P> </EDNOTE> <SUBPART> <HD SOURCE="HED">Subpart A—General Provisions</HD> <SECTION> <SECTNO>§ 40.1</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>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:</P> <P>(a) (1) <E T="03">Accompanying or accompanied by</E> 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:</P> <P>(i) The date of issuance of a visa to the principal alien;</P> <P>(ii) The date of adjustment of status in the United States of the principal alien; or</P> <P>(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.</P> <P>(2) An “accompanying” relative may not precede the principal alien to the United States.</P> <P>(b) <E T="03">Act</E> means the Immigration and Nationality Act (or INA), as amended.</P> <P>(c) <E T="03">Competent officer,</E> as used in INA 101(a)(26), means a “consular officer” as defined in INA 101(a)(9).</P> <P>(d) <E T="03">Consular officer,</E> 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).</P> <P>(e) <E T="03">Department</E> means the Department of State of the United States of America.</P> <P>(f) <E T="03">Dependent area</E> means a colony or other component or dependent area overseas from the governing foreign state.</P> <P>(g) <E T="03">DHS</E> means the Department of Homeland Security.</P> <P>(h) <E T="03">Documentarily qualified</E> 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.</P> <P>(i) <E T="03">Entitled to immigrant classification</E> means that the alien:</P> <P>(1) Is the beneficiary of an approved petition granting immediate relative or preference status;</P> <P>(2) Has satisfied the consular officer as to entitlement to special immigrant status under INA 101(a)(27) (A) or (B);</P> <P>(3) Has been selected by the annual selection system to apply under INA 203(c); or</P> <P>(4) Is an alien described in § 40.51(c).<PRTPAGE P="137"/> </P> <P>(j) <E T="03">Foreign state,</E> 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.</P> <P>(k) <E T="03">INA</E> means the Immigration and Nationality Act, as amended.</P> <P>(l) <E T="03">Make or file an application for a visa</E> means:</P> <P>(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.</P> <P>(2) For an immigrant visa applicant, personally appearing before a consular officer and verifying by oath or affirmation the statements contained on the Form DS-230 and in all supporting documents, having previously submitted all forms and documents required in advance of the appearance and paid the visa application processing fee.</P> <P>(m) <E T="03">Native</E> 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).</P> <P>(n) <E T="03">Not subject to numerical limitation</E> 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).</P> <P>(o) <E T="03">Parent, father, and mother,</E> 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> <P>(p) <E T="03">Port of entry</E> means a port or place designated by the DHS at which an alien may apply to DHS for admission into the United States.</P> <P>(q) <E T="03">Principal alien</E> means an alien from whom another alien derives a privilege or status under the law or regulations.</P> <P>(r) <E T="03">Regulation</E> means a rule which is established under the provisions of INA 104(a) and is duly published in the <E T="04">Federal Register.</E> </P> <P>(s) <E T="03">Son or daughter</E> includes only a person who would have qualified as a “child” under INA 101(b)(1) if the person were under 21 and unmarried.</P> <P>(t) <E T="03">Western Hemisphere</E> means North America (including Central America), South America and the islands immediately adjacent thereto including the places named in INA 101(b)(5).</P> <CITA>[56 FR 30422, July 2, 1991, as amended at 56 FR 43552, Sept. 3, 1991; 59 FR 15300, Mar. 31, 1994; 61 FR 1835, Jan. 24, 1996; 64 FR 55418, Oct. 13, 1999; 65 FR 54413, Sept. 8, 2000; 71 FR 34520, June 15, 2006; 73 FR 23068, Apr. 29, 2008]</CITA> </SECTION> <SECTION> <SECTNO>§ 40.2</SECTNO> <SUBJECT>Documentation of nationals.</SUBJECT> <P>(a) <E T="03">Nationals of the United States.</E> A national of the United States shall not be issued a visa or other documentation as an alien for entry into the United States.</P> <P>(b) <E T="03">Former Nationals of the United States.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 40.3</SECTNO> <SUBJECT>Entry into areas under U.S. administration.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 40.4</SECTNO> <SUBJECT>Furnishing records and information from visa files for court proceedings.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <PRTPAGE P="138"/> <SECTNO>§ 40.5</SECTNO> <SUBJECT>Limitations on the use of National Crime Information Center (NCIC) criminal history information.</SUBJECT> <P>(a) <E T="03">Authorized access.</E> 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.</P> <P>(b) <E T="03">Use of information.</E> 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.</P> <P>(c ) <E T="03">Confidentiality and protection of records.</E> 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.</P> <CITA>[67 FR 8478, Feb. 25, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 40.6</SECTNO> <SUBJECT>Basis for refusal.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§§ 40.7-40.8</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 40.9</SECTNO> <SUBJECT>Classes of inadmissible aliens.</SUBJECT> <P>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.</P> <CITA>[61 FR 59184, Nov. 21, 1996]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Medical Grounds of Ineligibility</HD> <SECTION> <SECTNO>§ 40.11</SECTNO> <SUBJECT>Medical grounds of ineligibility.</SUBJECT> <P>(a) <E T="03">Decision on eligibility based on findings of medical doctor.</E> 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.</P> <P>(b) <E T="03">Waiver of ineligibility—INA 212(g).</E> 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).</P> <P>(c) <E T="03">Waiver authority—INA 212(g)(2)(A) and (B).</E> 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).</P> <CITA>[56 FR 30422, July 2, 1991, as amended at 62 FR 67567, Dec. 29, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§§ 40.12-40.19</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Criminal and Related Grounds—Conviction of Certain Crimes</HD> <SECTION> <SECTNO>§ 40.21</SECTNO> <SUBJECT>Crimes involving moral turpitude and controlled substance violators.</SUBJECT> <P>(a) <E T="03">Crimes involving moral turpitude</E>—(1) <E T="03">Acts must constitute a crime under criminal law of jurisdiction where they occurred.</E> A Consular Officer may make a <PRTPAGE P="139"/>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.</P> <P>(2) <E T="03">Conviction for crime committed under age 18.</E> (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:</P> <P>(A) Prior to the alien's fifteenth birthday, or</P> <P>(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.</P> <P>(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.</P> <P>(3) <E T="03">Two or more crimes committed under age 18.</E> 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.</P> <P>(4) <E T="03">Conviction in absentia.</E> 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).</P> <P>(5) <E T="03">Effect of pardon by appropriate U.S. authorities/foreign states.</E> 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).</P> <P>(6) <E T="03">Political offenses.</E> 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.</P> <P>(7) <E T="03">Waiver of ineligibility—INA 212(h).</E> 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).</P> <P>(b) <E T="03">Controlled substance violators</E>—(1) <E T="03">Date of conviction not pertinent.</E> 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.</P> <P>(2) <E T="03">Waiver of ineligibility—INA 212(h).</E> 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).</P> <CITA>[56 FR 30422, July 2, 1991, as amended at 64 FR 55418, Oct. 13, 1999]</CITA> </SECTION> <SECTION> <PRTPAGE P="140"/> <SECTNO>§ 40.22</SECTNO> <SUBJECT>Multiple criminal convictions.</SUBJECT> <P>(a) <E T="03">Conviction(s) for crime(s) committed under age 18.</E> 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.</P> <P>(b) <E T="03">Conviction in absentia.</E> A conviction in absentia shall not constitute a conviction within the meaning of INA 212(a)(2)(B).</P> <P>(c) <E T="03">Effect of pardon by appropriate U.S. authorities/foreign states.</E> 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).</P> <P>(d) <E T="03">Political offense.</E> 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.</P> <P>(e) <E T="03">Waiver of ineligibility—INA 212(h).</E> 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).</P> <CITA>[56 FR 30422, July 2, 1991, as amended at 62 FR 67567, Dec. 29, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 40.23</SECTNO> <RESERVED>Controlled substance traffickers. [Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 40.24</SECTNO> <SUBJECT>Prostitution and commercialized vice.</SUBJECT> <P>(a) <E T="03">Activities within 10 years preceding visa application.</E> An alien shall be ineligible under INA 212(a)(2)(D) only if—</P> <P>(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</P> <P>(2) The alien has performed one of the activities listed in § 40.24(a)(1) within the last ten years.</P> <P>(b) <E T="03">Prostitution defined.</E> 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.</P> <P>(c) <E T="03">Where prostitution not illegal.</E> 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.</P> <P>(d) <E T="03">Waiver of ineligibility—INA 212(h).</E> If an immigrant visa applicant is ineligible under INA 212(a)(2)(D) but is qualified to seek the benefits of INA <PRTPAGE P="141"/>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).</P> </SECTION> <SECTION> <SECTNO>§ 40.25</SECTNO> <RESERVED>Certain aliens involved in serious criminal activity who have asserted immunity from prosecution. [Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§§ 40.26-40.29</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Security and Related Grounds</HD> <SECTION> <SECTNO>§ 40.31</SECTNO> <RESERVED>General. [Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 40.32</SECTNO> <RESERVED>Terrorist activities. [Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 40.33</SECTNO> <RESERVED>Foreign policy. [Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 40.34</SECTNO> <SUBJECT>Immigrant membership in totalitarian party.</SUBJECT> <P>(a) <E T="03">Definition of affiliate.</E> The term <E T="03">affiliate,</E> 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 <E T="03">affiliate</E> of such association or party, but nothing contained in this paragraph shall be construed as an exclusive definition of the term <E T="03">affiliate.</E> </P> <P>(b) <E T="03">Service in Armed Forces.</E> 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.</P> <P>(c) <E T="03">Voluntary Service in a Political Capacity.</E> Voluntary service in a political capacity shall constitute affiliation with the political party or organization in power at the time of such service.</P> <P>(d) <E T="03">Voluntary Membership After Age 16.</E> 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.</P> <P>(e) <E T="03">Operation of Law Defined.</E> The term <E T="03">operation of law,</E> 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.</P> <P>(f) <E T="03">Membership in Organization Advocating Totalitarian Dictatorship in the United States.</E> In accordance with the definition of <E T="03">totalitarian party</E> 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.</P> <P>(g) <E T="03">Waiver of ineligibility—212(a)(3)(D)(iv).</E> 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).</P> </SECTION> <SECTION> <SECTNO>§ 40.35</SECTNO> <SUBJECT>Participants in Nazi persecutions or genocide.</SUBJECT> <P>(a) <E T="03">Participation in Nazi persecutions.</E> [Reserved]</P> <P>(b) <E T="03">Participation in genocide.</E> [Reserved]</P> </SECTION> <SECTION> <PRTPAGE P="142"/> <SECTNO>§§ 40.36-40.39</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart E—Public Charge</HD> <SECTION> <SECTNO>§ 40.41</SECTNO> <SUBJECT>Public charge.</SUBJECT> <P>(a) <E T="03">Basis for Determination of Ineligibility.</E> Any determination that an alien is ineligible under INA 212(a)(4) must be predicated upon circumstances indicating that, notwithstanding any affidavit of support that may have been filed on the alien's behalf, the alien is likely to become a public charge after admission, or, if applicable, that the alien has failed to fulfill the affidavit of support requirement of INA 212(a)(4)(C).</P> <P>(b) <E T="03">Affidavit of support.</E> 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 (AOS) on a form that complies with terms and conditions established by the Secretary of Homeland Security. Petitioners for applicants at a post designated by the Deputy Assistant Secretary for Visa Services for initial review of and assistance with such an AOS will be charged a fee for such review and assistance pursuant to Item 61 of the Schedule of Fees for Consular Services (22 CFR 22.1).</P> <P>(c) <E T="03">Joint Sponsors.</E> Submission of one or more additional affidavits of support by a joint sponsor/sponsors is required whenever the relative sponsor's household income and significant assets, and the immigrant's assets, do not meet the Federal poverty line requirements of INA 213A.</P> <P>(d) <E T="03">Posting of Bond.</E> A consular officer may issue a visa to an alien who is within the purview of INA 212(a)(4) (subject to the affidavit of support requirement and attribution of sponsor's income and resources under section 213A), upon receipt of a notice from DHS of the giving of a bond or undertaking in accordance with INA 213 and INA 221(g), and provided further that the officer is satisfied that the giving of such bond or undertaking removes the likelihood that the alien will become a public charge within the meaning of this section of the law and that the alien is otherwise eligible in all respects.</P> <P>(e) <E T="03">Prearranged Employment.</E> 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.</P> <P>(f) <E T="03">Use of Federal Poverty Line Where INA 213A Not Applicable.</E> An immigrant visa applicant, not subject to the requirements of INA 213A, and relying solely on personal income to establish eligibility under INA 212(a)(4), who does not demonstrate an annual income above the Federal poverty line, as defined in INA 213A (h), and who is without other adequate financial resources, shall be presumed ineligible under INA 212(a)(4).</P> <CITA>[62 FR 67564, Dec. 29, 1997, as amended at 65 FR 78094, Dec. 14, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§§ 40.42-40.49</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart F—Labor Certification and Qualification for Certain Immigrants</HD> <SECTION> <SECTNO>§ 40.51</SECTNO> <SUBJECT>Labor certification.</SUBJECT> <P>(a) <E T="03">INA 212(a)(5) applicable only to certain immigrant aliens.</E> 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.</P> <P>(b) <E T="03">Determination of need for alien's labor skills.</E> 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<PRTPAGE P="143"/> </P> <P>(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</P> <P>(2) The employment of such alien will not adversely affect the wages and working conditions of the workers in the United States similarly employed.</P> <P>(c) <E T="03">Labor certification not required in certain cases.</E> 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).</P> <CITA>[56 FR 30422, July 2, 1991, as amended at 61 FR 1835, Jan. 24, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 40.52</SECTNO> <SUBJECT>Unqualified physicians.</SUBJECT> <P>INA 212(a)(5)(B) applies only to immigrant aliens described in INA 203(b) (2) or (3).</P> <CITA>[61 FR 1835, Jan. 24, 1996, as amended at 62 FR 67567, Dec. 29, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 40.53</SECTNO> <SUBJECT>Uncertified foreign health-care workers.</SUBJECT> <P>(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.</P> <P>(b) Paragraph (a) of this section does not apply to an alien:</P> <P>(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</P> <P>(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</P> <P>(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.</P> <CITA>[67 FR 77159, Dec. 17, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§§ 40.54-40.59</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart G—Illegal Entrants and Immigration Violators</HD> <SECTION> <SECTNO>§ 40.61</SECTNO> <SUBJECT>Aliens present without admission or parole.</SUBJECT> <P>INA 212(a)(6)(A)(i) does not apply at the time of visa issuance.</P> <CITA>[62 FR 67567, Dec. 29, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 40.62</SECTNO> <SUBJECT>Failure to attend removal proceedings.</SUBJECT> <P>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.</P> <CITA>[62 FR 67567, Dec. 29, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 40.63</SECTNO> <SUBJECT>Misrepresentation; Falsely claiming citizenship.</SUBJECT> <P>(a) <E T="03">Fraud and misrepresentation and INA 212(a)(6)(C) applicability to certain refugees.</E> 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); <E T="03">Provided,</E> 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 <PRTPAGE P="144"/>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: <E T="03">Provided further,</E> 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.</P> <P>(b) <E T="03">Misrepresentation in application under Displaced Persons Act or Refugee Relief Act.</E> 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).</P> <P>(c) <E T="03">Waiver of ineligibility—INA 212(i).</E> 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).</P> <CITA>[56 FR 30422, July 2, 1991, as amended at 61 FR 1835, Jan. 24, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 40.64</SECTNO> <SUBJECT>Stowaways.</SUBJECT> <P>INA 212(a)(6)(D) is not applicable at the time of visa application.</P> </SECTION> <SECTION> <SECTNO>§ 40.65</SECTNO> <SUBJECT>Smugglers.</SUBJECT> <P>(a) <E T="03">General.</E> 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.</P> <P>(b) <E T="03">Waiver of ineligibility—INA 212(d)(11).</E> 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).</P> </SECTION> <SECTION> <SECTNO>§ 40.66</SECTNO> <SUBJECT>Subject of civil penalty.</SUBJECT> <P>(a) <E T="03">General.</E> 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).</P> <P>(b) <E T="03">Waiver of ineligibility.</E> 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).</P> <CITA>[62 FR 67567, Dec. 29, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 40.67</SECTNO> <SUBJECT>Student visa abusers.</SUBJECT> <P>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.</P> <CITA>[62 FR 67568, Dec. 29, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 40.68</SECTNO> <SUBJECT>Aliens subject to INA 222(g).</SUBJECT> <P>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.</P> <CITA>[63 FR 671, Jan. 7, 1998]</CITA> </SECTION> <SECTION> <PRTPAGE P="145"/> <SECTNO>§ 40.69</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart H—Documentation Requirements</HD> <SECTION> <SECTNO>§ 40.71</SECTNO> <SUBJECT>Documentation requirements for immigrants.</SUBJECT> <P>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.)</P> </SECTION> <SECTION> <SECTNO>§ 40.72</SECTNO> <SUBJECT>Documentation requirements for nonimmigrants.</SUBJECT> <P>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).</P> </SECTION> <SECTION> <SECTNO>§§ 40.73-40.79</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart I—Ineligible for Citizenship.</HD> <SECTION> <SECTNO>§ 40.81</SECTNO> <SUBJECT>Ineligible for citizenship.</SUBJECT> <P>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.</P> <CITA>[64 FR 55418, Oct. 13, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 40.82</SECTNO> <SUBJECT>Alien who departed the United States to avoid service in the armed forces.</SUBJECT> <P>(a) <E T="03">Applicability to immigrants.</E> 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.</P> <P>(b) <E T="03">Applicability to nonimmigrants.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§§ 40.83-40.89</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart J—Aliens Previously Removed</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>61 FR 59184, Nov. 21, 1996, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 40.91</SECTNO> <SUBJECT>Certain aliens previously removed.</SUBJECT> <P>(a) <E T="03">5-year bar.</E> 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.</P> <P>(b) <E T="03">10-year bar.</E> 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.</P> <P>(c) <E T="03">20-year bar.</E> 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.</P> <P>(d) <E T="03">Permanent bar.</E> 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.</P> <P>(e) <E T="03">Exceptions.</E> 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.</P> <CITA>[62 FR 67568, Dec. 29, 1997, as amended at 63 FR 64628, Nov. 23, 1998]</CITA> </SECTION> <SECTION> <SECTNO>§ 40.92</SECTNO> <SUBJECT>Aliens unlawfully present.</SUBJECT> <P>(a) <E T="03">3-year bar.</E> 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.</P> <P>(b) <E T="03">10-year bar.</E> An alien described in INA 212(a)(9)(B)(i)(II) shall be ineligible <PRTPAGE P="146"/>for a visa for 10 years following departure from the United States.</P> <P>(c) <E T="03">Waiver.</E> 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.</P> <CITA>[62 FR 67568, Dec. 29, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 40.93</SECTNO> <SUBJECT>Aliens unlawfully present after previous immigration violation.</SUBJECT> <P>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.</P> <CITA>[62 FR 67568, Dec. 29, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§§ 40.94-40.99</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart K—Miscellaneous</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>56 FR 30422, July 2, 1991, unless otherwise noted. Redesignated at 61 FR 59184, Nov. 21, 1996.</P> </SOURCE> <SECTION> <SECTNO>§ 40.101</SECTNO> <SUBJECT>Practicing polygamists.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 40.102</SECTNO> <SUBJECT>Guardian required to accompany excluded alien.</SUBJECT> <P>INA 212(a)(9)(B) is not applicable at the time of visa application.</P> </SECTION> <SECTION> <SECTNO>§ 40.103</SECTNO> <SUBJECT>International child abduction.</SUBJECT> <P>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.</P> <CITA>[61 FR 1833, Jan. 24, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 40.104</SECTNO> <SUBJECT>Unlawful voters.</SUBJECT> <P>(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.</P> <P>(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.</P> <CITA>[70 FR 35527, June 21, 2005]</CITA> </SECTION> <SECTION> <SECTNO>§ 40.105</SECTNO> <SUBJECT>Former citizens who renounced citizenship to avoid taxation.</SUBJECT> <P>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).</P> <CITA>[62 FR 67568, Dec. 29, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§§ 40.106-40.110</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart L—Failure to Comply with INA</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>56 FR 30422, July 2, 1991, unless otherwise noted. Redesignated at 61 FR 59184, Nov. 21, 1996.</P> </SOURCE> <SECTION> <SECTNO>§ 40.201</SECTNO> <SUBJECT>Failure of application to comply with INA.</SUBJECT> <P>(a) <E T="03">Refusal under INA 221(g).</E> 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:</P> <P>(1) The applicant fails to furnish information as required by law or regulations;</P> <P>(2) The application contains a false or incorrect statement other than one <PRTPAGE P="147"/>which would constitute a ground of ineligibility under INA 212(a)(6)(C);</P> <P>(3) The application is not supported by the documents required by law or regulations;</P> <P>(4) The applicant refuses to be fingerprinted as required by regulations;</P> <P>(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;</P> <P>(6) In the case of an immigrant visa application, the alien fails to swear to, or affirm, the application before the consular officer; or</P> <P>(7) The application otherwise fails to meet specific requirements of law or regulations for reasons for which the alien is responsible.</P> <P>(b) <E T="03">Reconsideration of refusals.</E> 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.</P> <CITA>[56 FR 30422, July 2, 1991, as amended at 61 FR 1835, Jan. 24, 1996. Redesignated at 61 FR 59184, Nov. 21, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 40.202</SECTNO> <SUBJECT>Certain former exchange visitors.</SUBJECT> <P>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:</P> <P>(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</P> <P>(b) The foreign residence requirement of INA 212(e) has been waived by the Secretary of Homeland Security in the alien's behalf.</P> </SECTION> <SECTION> <SECTNO>§ 40.203</SECTNO> <SUBJECT>Alien entitled to A, E, or G nonimmigrant classification.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 40.204</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 40.205</SECTNO> <SUBJECT>Applicant for immigrant visa under INA 203(c).</SUBJECT> <P>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.</P> <CITA>[59 FR 55045, Nov. 3, 1994. Redesignated at 61 FR 59184, Nov. 21, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 40.206</SECTNO> <RESERVED>Frivolous applications. [Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§§ 40.207-40.210</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart M—Waiver of Ground of Ineligibility</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>56 FR 30422, July 2, 1991, unless otherwise noted. Redesignated at 61 FR 59184, Nov. 21, 1996]</P> </SOURCE> <SECTION> <SECTNO>§ 40.301</SECTNO> <SUBJECT>Waiver for ineligible nonimmigrants under INA 212(d)(3)(A).</SUBJECT> <P>(a) <E T="03">Report or recommendation to Department.</E> Except as provided in paragraph (b) of this section, consular officers may, upon their own initiative, and shall, upon the request of the Secretary of State or upon the request of the alien, submit a report to the Department for possible transmission to the Secretary of Homeland Security pursuant to the provisions of INA 212(d)(3)(A) in the case of an alien who is classifiable as a nonimmigrant but <PRTPAGE P="148"/>who is known or believed by the consular officer to be ineligible to receive a nonimmigrant visa under the provisions of INA 212(a), other than INA 212(a) (3)(A), (3)(C) or (3)(E).</P> <P>(b) <E T="03">Recommendation to designated DHS officer abroad.</E> A consular officer may, in certain categories defined by the Secretary of State, recommend directly to designated DHS officers that the temporary admission of an alien ineligible to receive a visa be authorized under INA 212(d)(3)(A).</P> <P>(c) <E T="03">Secretary of Homeland Security may impose conditions.</E> When the Secretary of Homeland Security authorizes the temporary admission of an ineligible 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.</P> </SECTION> </SUBPART> </PART> <PART> <EAR>Pt. 41</EAR> <HD SOURCE="HED">PART 41—VISAS: DOCUMENTATION OF NONIMMIGRANTS UNDER THE IMMIGRATION AND NATIONALITY ACT, AS AMENDED</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—Passport and Visas Not Required for Certain Nonimmigrants</HD> <SECHD>Sec.</SECHD> <SECTNO>41.0</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>41.1</SECTNO> <SUBJECT>Exemption by law or treaty from passport and visa requirements.</SUBJECT> <SECTNO>41.2</SECTNO> <SUBJECT>Waiver by Secretary of State and Secretary of Homeland Security of passport and/or visa requirements for certain categories of nonimmigrants.</SUBJECT> <SECTNO>41.3</SECTNO> <SUBJECT>Waiver by joint action of consular and immigration officers of passport and/or visa requirements.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Classification of Nonimmigrants</HD> <SECTNO>41.11</SECTNO> <SUBJECT>Entitlement to nonimmigrant status.</SUBJECT> <SECTNO>41.12</SECTNO> <SUBJECT>Classification symbols.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Foreign Government Officials</HD> <SECTNO>41.21</SECTNO> <SUBJECT>Foreign Officials—General.</SUBJECT> <SECTNO>41.22</SECTNO> <SUBJECT>Officials of foreign governments.</SUBJECT> <SECTNO>41.23</SECTNO> <SUBJECT>Accredited officials in transit.</SUBJECT> <SECTNO>41.24</SECTNO> <SUBJECT>International organization aliens.</SUBJECT> <SECTNO>41.25</SECTNO> <SUBJECT>NATO representatives, officials, and employees.</SUBJECT> <SECTNO>41.26</SECTNO> <SUBJECT>Diplomatic visas.</SUBJECT> <SECTNO>41.27</SECTNO> <SUBJECT>Official visas.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Temporary Visitors</HD> <SECTNO>41.31</SECTNO> <SUBJECT>Temporary visitors for business or pleasure.</SUBJECT> <SECTNO>41.32</SECTNO> <SUBJECT>Nonresident alien Mexican border crossing identification cards; combined border crossing identification cards and B-1/B-2 visitor visa.</SUBJECT> <SECTNO>41.33</SECTNO> <SUBJECT>Nonresident alien Canadian border crossing identification card (BCC).</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart E—Crewman and Crew-List Visas</HD> <SECTNO>41.41</SECTNO> <SUBJECT>Crewmen.</SUBJECT> <SECTNO>41.42</SECTNO> <SUBJECT>[Reserved]</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart F—Business and Media Visas</HD> <SECTNO>41.51</SECTNO> <SUBJECT>Treaty trader, treaty investor, or treaty alien in a specialty occupation.</SUBJECT> <SECTNO>41.52</SECTNO> <SUBJECT>Information media representative.</SUBJECT> <SECTNO>41.53</SECTNO> <SUBJECT>Temporary workers and trainees.</SUBJECT> <SECTNO>41.54</SECTNO> <SUBJECT>Intracompany transferees (executives, managers, and specialists).</SUBJECT> <SECTNO>41.55</SECTNO> <SUBJECT>Aliens with extraordinary ability.</SUBJECT> <SECTNO>41.56</SECTNO> <SUBJECT>Athletes, artists and entertainers.</SUBJECT> <SECTNO>41.57</SECTNO> <SUBJECT>International cultural exchange visitors and visitors under the Irish Peace Process Cultural and Training Program Act (IPPCTPA).</SUBJECT> <SECTNO>41.58</SECTNO> <SUBJECT>Aliens in religious occupations.</SUBJECT> <SECTNO>41.59</SECTNO> <SUBJECT>Professionals under the North American Free Trade Agreement.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart G—Students and Exchange Visitors</HD> <SECTNO>41.61</SECTNO> <SUBJECT>Students—academic and nonacademic.</SUBJECT> <SECTNO>41.62</SECTNO> <SUBJECT>Exchange visitors.</SUBJECT> <SECTNO>41.63</SECTNO> <SUBJECT>Two-year home-country physical presence requirement.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart H—Transit Aliens</HD> <SECTNO>41.71</SECTNO> <SUBJECT>Transit aliens.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart I—Fiance(e)s and Other Nonimmigrants</HD> <SECTNO>41.81</SECTNO> <SUBJECT>Fiancé or spouse of a U.S. citizen and derivative children.</SUBJECT> <SECTNO>41.82</SECTNO> <SUBJECT>Certain parents and children of section 101(a)(27)(I) special immigrants. [Reserved]</SUBJECT> <SECTNO>41.83</SECTNO> <SUBJECT>Certain witnesses and informants.</SUBJECT> <SECTNO>41.84</SECTNO> <SUBJECT>Victims of trafficking in persons.</SUBJECT> <SECTNO>41.86</SECTNO> <SUBJECT>Certain spouses and children of lawful permanent resident aliens.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart J—Application for Nonimmigrant Visa</HD> <SECTNO>41.101</SECTNO> <SUBJECT>Place of application.</SUBJECT> <SECTNO>41.102</SECTNO> <SUBJECT>Personal appearance of applicant.</SUBJECT> <SECTNO>41.103</SECTNO> <SUBJECT>Filing an application.</SUBJECT> <SECTNO>41.104</SECTNO> <SUBJECT>Passport requirements.</SUBJECT> <SECTNO>41.105</SECTNO> <SUBJECT>Supporting documents and fingerprinting.<PRTPAGE P="149"/> </SUBJECT> <SECTNO>41.106</SECTNO> <SUBJECT>Processing.</SUBJECT> <SECTNO>41.107</SECTNO> <SUBJECT>Visa fees.</SUBJECT> <SECTNO>41.108</SECTNO> <SUBJECT>Medical examination.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart K—Issuance of Nonimmigrant Visa</HD> <SECTNO>41.111</SECTNO> <SUBJECT>Authority to issue visa.</SUBJECT> <SECTNO>41.112</SECTNO> <SUBJECT>Validity of visa.</SUBJECT> <SECTNO>41.113</SECTNO> <SUBJECT>Procedures in issuing visas.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart L—Refusals and Revocations</HD> <SECTNO>41.121</SECTNO> <SUBJECT>Refusal of individual visas.</SUBJECT> <SECTNO>41.122</SECTNO> <SUBJECT>Revocation of visas.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>8 U.S.C. 1104; Pub. L. 105-277, 112 Stat. 2681-795 through 2681-801; 8 U.S.C. 1185 note (section 7209 of Pub. L. 108-458).</P> </AUTH> <EFFDNOTP> <HD SOURCE="HED">Effective Date Note:</HD> <P>At 73 FR 18418, Apr. 3, 2008, the authoroty citation for part 41 was revised, effective June 1, 2009. For the convenience of the user, the revised text is set forth as follows:</P> <REVTXT> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>8 U.S.C. 1104; Pub. L. 105-277, 112 Stat. 2681-795 through 2681-801; 8 U.S.C. 1185 note (section 7209 of Pub. L. 108-458, as amended by section 546 of Pub. L. 109-295).</P> </AUTH> </REVTXT> </EFFDNOTP> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>52 FR 42597, Nov. 5, 1987, unless otherwise noted.</P> </SOURCE> <EDNOTE> <HD SOURCE="HED">Editorial Note:</HD> <P>Nomenclature changes to part 41 appear at 71 FR 34521 and 34522, June 15, 2006.</P> </EDNOTE> <SUBPART> <HD SOURCE="HED">Subpart A—Passport and Visas Not Required for Certain Nonimmigrants</HD> <SECTION> <SECTNO>§ 41.0</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>For purposes of this part and part 53:</P> <P> <E T="03">Adjacent islands</E> means Bermuda and the islands located in the Caribbean Sea, except Cuba.</P> <P> <E T="03">Cruise ship</E> 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.</P> <P> <E T="03">Ferry</E> 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.</P> <P> <E T="03">Pleasure vessel</E> means a vessel that is used exclusively for recreational or personal purposes and not to transport passengers or property for hire.</P> <P> <E T="03">United States</E> 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)).</P> <P> <E T="03">U.S. citizen</E> means a United States citizen or a U.S. non-citizen national.</P> <P> <E T="03">United States qualifying tribal entity</E> means a tribe, band, or other group of Native Americans formally recognized by the United States Government which agrees to meet WHTI document standards.</P> <CITA>[73 FR 18418, Apr. 3, 2008]</CITA> <EFFDNOTP> <HD SOURCE="HED">Effective Date Note:</HD> <P>At 73 FR 18418, Apr. 3, 2008, § 41.0 was added, effective June 1, 2009.</P> </EFFDNOTP> </SECTION> <SECTION> <SECTNO>§ 41.1</SECTNO> <SUBJECT>Exemption by law or treaty from passport and visa requirements.</SUBJECT> <P>Nonimmigrants in the following categories are exempt from the passport and visa requirements of INA 212(a)(7)(B)(i)(I), (i)(II):</P> <P>(a) <E T="03">Alien members of the U.S. Armed Forces.</E> 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).</P> <P>(b) <E T="03">American Indians born in Canada.</E> An American Indian born in Canada, having at least 50 per centum of blood of the American Indian race, entering from contiguous territory by land or sea (sec. 289, 66 Stat. 234; 8 U.S.C. 1359).</P> <P>(c) <E T="03">Aliens entering from Guam, Puerto Rico, or the Virgin Islands.</E> 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.)</P> <P>(d) <E T="03">Armed Services personnel of a NATO member.</E> 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.)<PRTPAGE P="150"/> </P> <P>(e) <E T="03">Armed Services personnel attached to a NATO headquarters in the United States.</E> 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.)</P> <P>(f) <E T="03">Aliens entering pursuant to International Boundary and Water Commission Treaty.</E> 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.)</P> <CITA>[52 FR 42597, Nov. 5, 1987, as amended at 56 FR 30428, July 2, 1991; 61 FR 1835, Jan. 24, 1996; 71 FR 68430, Nov. 24, 2006]</CITA> <EFFDNOTP> <HD SOURCE="HED">Effective Date Note:</HD> <P>At 73 FR 18418, Apr. 3, 2008, § 41.1 was amended by removing and reserving paragraph (b), effective June 1, 2009.</P> </EFFDNOTP> </SECTION> <SECTION> <SECTNO>§ 41.2</SECTNO> <SUBJECT>Waiver by Secretary of State and Secretary of Homeland Security of passport and/or visa requirements for certain categories of nonimmigrants.</SUBJECT> <P>Pursuant to the authority of the Secretary of State and the Secretary of Homeland Security under INA 212(d)(4), the passport and/or visa requirements of INA 212(a)(7)(B)(i)(I), (i)(II) are waived as specified below for the following categories of nonimmigrants:</P> <P>(a) <E T="03">Canadian nationals.</E> A visa is not required. A passport is not required for Canadian citizens entering the United States from within the Western Hemisphere by land or sea, or by air as participants in the NEXUS Air program pursuant to 8 CFR 235.1(e). A passport is otherwise required for Canadian citizens arriving in the United States by aircraft.</P> <P>(b) <E T="03">Citizens of the British Overseas Territory of Bermuda.</E> A visa is not required. A passport is not required for Citizens of the British Overseas Territory of Bermuda entering the United States from within the Western Hemisphere by land or sea. A passport is required for Citizens of the British Overseas Territory of Bermuda arriving in the United States by aircraft.</P> <P>(c) <E T="03">Bahamian nationals and British subjects resident in the Bahamas.</E> 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.</P> <P>(d) <E T="03">British subjects resident in the Cayman Islands or in the Turks and Caicos Islands.</E> 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.</P> <P>(e) <E T="03">British, French, and Netherlands nationals and nationals of certain adjacent islands of the Caribbean which are independent countries.</E> A passport is required. A visa is not required of a British, French or Netherlands national, or of a national of Antigua, Barbados, Grenada, Jamaica, or Trinidad and Tobago, who has residence in British, French, or Netherlands territory located in the adjacent islands of the Caribbean area, or has residence in Antigua, Barbados, Grenada, Jamaica, or Trinidad and Tobago, if the alien:</P> <P>(1) Is proceeding to the United States as an agricultural worker; or</P> <P>(2) 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 thereto for employment, or is the spouse or child of such an alien accompanying or following to join the alien.</P> <P>(f) <E T="03">Nationals and residents of the British Virgin Islands.</E> (1) A national of the British Virgin Islands and resident therein requires a passport but not a <PRTPAGE P="151"/>visa if proceeding to the United States Virgin Islands.</P> <P>(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:</P> <P>(i) Is proceeding by aircraft directly from St. Thomas, U.S. Virgin Islands;</P> <P>(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);</P> <P>(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</P> <P>(iv) Presents a current Certificate of Good Conduct issued by the Royal Virgin Islands Police Department indicating that he or she has no criminal record.</P> <P>(g) <E T="03">Mexican nationals.</E> (1) A visa and a passport are not required of a Mexican national in possession of a Form DSP-150, B-1/B-2 Visa and Border Crossing Card, containing a machine-readable biometric identifier, applying for admission as a temporary visitor for business or pleasure from a contiguous territory by land or sea.</P> <P>(2) A visa and a passport are not required of a Mexican national who is entering solely for the purpose of applying for a Mexican passport or other official Mexican document at a Mexican consular office on the United States side of the border.</P> <P>(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.</P> <P>(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).</P> <P>(h) <E T="03">Natives and residents of the Trust Territory of the Pacific Islands.</E> 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.</P> <P>(i) [Reserved]</P> <P>(j) Except as provided in paragraphs (a) through (i) and (k) through (m) of this section, all aliens are required to present a valid, unexpired visa and passport upon arrival in the United States. An alien may apply for a waiver of the visa and passport requirement if, either prior to the alien's embarkation abroad or upon arrival at a port of entry, the responsible district director of the Department of Homeland Security (DHS) in charge of the port of entry concludes that the alien is unable to present the required documents because of an unforeseen emergency. The DHS 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 district director concludes that the alien's claim of emergency circumstances is legitimate and that approval of the waiver would be appropriate under all of the attendant facts and circumstances.</P> <P>(k) <E T="03">Fiance(e) of a U.S. citizen.</E> 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).</P> <P>(l) <E T="03">Visa waiver program.</E> (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, <E T="03">see</E> 8 CFR 217.2(a)).<PRTPAGE P="152"/> </P> <P>(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).</P> <P>(m) <E T="03">Treaty Trader and Treaty Investor.</E> 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).</P> <CITA>[52 FR 42597, Nov. 5, 1987]</CITA> <EDNOTE> <HD SOURCE="HED">Editorial Note:</HD> <P>For <E T="04">Federal Register</E> citations affecting § 41.2, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and on GPO Access.</P> </EDNOTE> <EAR>§ 41.2, Nt.</EAR> <EFFDNOTP> <HD SOURCE="HED">Effective Date Note:</HD> <P>At 73 FR 18418, Apr. 3, 2008, § 41.2 was amended by revising the heading, the introductory text, and paragraphs (a), (b), (g)(1) and (g)(2), effective June 1, 2009. For the convenience of the user, the revised text is set forth as follows:</P> <REVTXT> <SECTION> <SECTNO>§ 41.2</SECTNO> <SUBJECT>Exemption or waiver by Secretary of State and Secretary of Homeland Security of passport and/or visa requirements for certain categories of nonimmigrants.</SUBJECT> <P>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:</P> <P>(a) <E T="03">Canadian citizens.</E> 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:</P> <P>(1) <E T="03">NEXUS program.</E> 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.</P> <P>(2) <E T="03">FAST program.</E> 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.</P> <P>(3) <E T="03">SENTRI program.</E> 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.</P> <P>(4) <E T="03">Canadian Indians.</E> 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.</P> <P>(5) <E T="03">Children.</E> 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.</P> <P>(i) <E T="03">Children under age 16.</E> 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.</P> <P>(ii) <E T="03">Groups of children under age 19.</E> 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 <PRTPAGE P="153"/>considered to be a person who is age 19 or older. The following requirements will apply:</P> <P>(A) The group, organization, or team must provide to CBP upon crossing the border, on organizational letterhead:</P> <P>(<E T="03">1</E>) The name of the group, organization or team, and the name of the supervising adult;</P> <P>(<E T="03">2</E>) A trip itinerary, including the stated purpose of the trip, the location of the destination, and the length of stay;</P> <P>(<E T="03">3</E>) A list of the children on the trip;</P> <P>(<E T="03">4</E>) 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.</P> <P>(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.</P> <P>(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.</P> <P>(6) <E T="03">Enhanced driver's license programs.</E> 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 <E T="04">Federal Register,</E> documents designated under this paragraph. A list of the documents designated under this paragraph will also be made available to the public.</P> <P>(b) <E T="03">Citizens of the British Overseas Territory of Bermuda.</E> 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.<STARS/> </P> <P>(g) <E T="03">Mexican nationals.</E> (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.</P> <P>(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).<STARS/> </P> </SECTION> <SECTION> <SECTNO>§ 41.3</SECTNO> <SUBJECT>Waiver by joint action of consular and immigration officers of passport and/or visa requirements.</SUBJECT> <P>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 is satisfied after consultation with, and concurrence by, the appropriate immigration officer, that the case falls within any of the following categories:</P> <P>(a) <E T="03">Residents of foreign contiguous territory; visa and passport waiver.</E> 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.</P> <P>(b) <E T="03">Aliens for whom passport extension facilities are unavailable; passport waiver.</E> 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.</P> <P>(c) <E T="03">Aliens precluded from obtaining passport extensions by foreign government restrictions; passport waiver.</E> 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.</P> <P>(d) <E T="03">Emergent circumstances; visa waiver.</E> An alien well and favorably known at the consular office, who was previously issued a nonimmigrant visa <PRTPAGE P="154"/>which has expired, and who is proceeding directly to the United States under emergent circumstances which preclude the timely issuance of a visa.</P> <P>(e) <E T="03">Members of armed forces of foreign countries; visa and passport waiver.</E> An alien on active duty in the armed forces of a foreign country and a member of a group of such armed forces traveling to the United States, on behalf of the alien's government or the United Nations, under advance arrangements made with the appropriate military authorities of the United States. The waiver does not apply to a citizen or resident of Cuba, Mongolia, North Korea (Democratic People's Republic of Korea), Vietnam (Socialist Republic of Vietnam), or the People's Republic of China.</P> <P>(f) <E T="03">Landed immigrants in Canada; passport waiver.</E> An alien applying for a visa at a consular office in Canada:</P> <P>(1) Who is a landed immigrant in Canada;</P> <P>(2) Whose port and date of expected arrival in the United States are known; and</P> <P>(3) Who is proceeding to the United States under emergent circumstances which preclude the timely procurement of a passport or Canadian certificate of identity.</P> <P>(g) <E T="03">Authorization to individual consular office; visa and/or passport waiver.</E> 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.</P> <CITA>[52 FR 42597, Nov. 5, 1987, as amended at 56 FR 30428, July 2, 1991; 60 FR 30188, June 8, 1995; 61 FR 1835, Jan. 24, 1996; 63 FR 48577, Sept. 11, 1998]</CITA> </SECTION> <SUBPART> <HD SOURCE="HED">Subpart B—Classification of Nonimmigrants</HD> <SECTION> <SECTNO>§ 41.11</SECTNO> <SUBJECT>Entitlement to nonimmigrant status.</SUBJECT> <P>(a) <E T="03">Presumption of immigrant status and burden of proof.</E> 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.</P> <P>(b) <E T="03">Aliens unable to establish nonimmigrant status.</E> (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).</P> <P>(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.</P> <CITA>[52 FR 42597, Nov. 5, 1987, as amended at 61 FR 1835, Jan. 24, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 41.12</SECTNO> <SUBJECT>Classification symbols.</SUBJECT> <P>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:</P> <GPOTABLE CDEF="xs48,r100,r84" COLS="3" OPTS="L2"> <TTITLE>Nonimmigrants</TTITLE> <BOXHD> <CHED H="1">Symbol</CHED> <CHED H="1">Class</CHED> <CHED H="1">Section of law</CHED> </BOXHD> <ROW> <ENT I="01">A1</ENT> <ENT>Ambassador, Public Minister, Career Diplomat or Consular Officer, or Immediate Family</ENT> <ENT>101(a)(15)(A)(i).</ENT> </ROW> <ROW> <ENT I="01">A2</ENT> <ENT>Other Foreign Government Official or Employee, or Immediate Family</ENT> <ENT>101(a)(15)(A)(ii).</ENT> </ROW> <ROW> <PRTPAGE P="155"/> <ENT I="01">A3</ENT> <ENT>Attendant, Servant, or Personal Employee of A1 or A2, or Immediate Family</ENT> <ENT>101(a)(15)(A)(iii).</ENT> </ROW> <ROW> <ENT I="01">B1</ENT> <ENT>Temporary Visitor for Business</ENT> <ENT>101(a)(15)(B).</ENT> </ROW> <ROW> <ENT I="01">B2</ENT> <ENT>Temporary Visitor for Pleasure</ENT> <ENT>101(a)(15)(B).</ENT> </ROW> <ROW> <ENT I="01">B1/B2</ENT> <ENT>Temporary Visitor for Business & Pleasure</ENT> <ENT>101(a)(15)(B).</ENT> </ROW> <ROW> <ENT I="01">C1</ENT> <ENT>Alien in Transit</ENT> <ENT>101(a)(15)(C).</ENT> </ROW> <ROW> <ENT I="01">C1/D</ENT> <ENT>Combined Transit and Crewmember Visa</ENT> <ENT>101(a)(15)(C) and (D).</ENT> </ROW> <ROW> <ENT I="01">C2</ENT> <ENT>Alien in Transit to United Nations Headquarters District Under Sec. 11.(3), (4), or (5) of the Headquarters Agreement</ENT> <ENT>101(a)(15)(C).</ENT> </ROW> <ROW> <ENT I="01">C3</ENT> <ENT>Foreign Government Official, Immediate Family, Attendant, Servant or Personal Employee, in Transit</ENT> <ENT>212(d)(8).</ENT> </ROW> <ROW> <ENT I="01">D</ENT> <ENT>Crewmember (Sea or Air)</ENT> <ENT>101(a)(15)(D).</ENT> </ROW> <ROW> <ENT I="01">E1</ENT> <ENT>Treaty Trader, Spouse or Child</ENT> <ENT>101(a)(15)(E)(i).</ENT> </ROW> <ROW> <ENT I="01">E2</ENT> <ENT>Treaty Investor, Spouse or Child</ENT> <ENT>101(a)(15)(E)(ii).</ENT> </ROW> <ROW> <ENT I="01">E3</ENT> <ENT>Australian Treaty Alien Coming to the United States Solely to Perform Services in a Specialty Occupation</ENT> <ENT>101(a)(15)(E)(iii).</ENT> </ROW> <ROW> <ENT I="01">E3D</ENT> <ENT>Spouse or Child of E3</ENT> <ENT>101(a)(15)(E)(iii).</ENT> </ROW> <ROW> <ENT I="01">E3R</ENT> <ENT>Returning E3</ENT> <ENT>101(a)(15)(E)(iii).</ENT> </ROW> <ROW> <ENT I="01">F1</ENT> <ENT>Student in an academic or language training program</ENT> <ENT>101(a)(15)(F)(i).</ENT> </ROW> <ROW> <ENT I="01">F2</ENT> <ENT>Spouse or Child of F1</ENT> <ENT>101(a)(15)(F)(ii).</ENT> </ROW> <ROW> <ENT I="01">F3</ENT> <ENT>Canadian or Mexican national commuter student in an academic or language training program</ENT> <ENT>101(a)(15)(F)(iii).</ENT> </ROW> <ROW> <ENT I="01">G1</ENT> <ENT>Principal Resident Representative of Recognized Foreign Government to International Organization, Staff, or Immediate Family</ENT> <ENT>101(a)(15)(G)(i).</ENT> </ROW> <ROW> <ENT I="01">G2</ENT> <ENT>Other Representative of Recognized Foreign Member Government to International Organization, or Immediate Family</ENT> <ENT>101(a)(15)(G)(ii).</ENT> </ROW> <ROW> <ENT I="01">G3</ENT> <ENT>Representative of Nonrecognized or Nonmember Foreign Government to International Organization, or Immediate Family</ENT> <ENT>101(a)(15)(G)(iii).</ENT> </ROW> <ROW> <ENT I="01">G4</ENT> <ENT>International Organization Officer or Employee, or Immediate Family</ENT> <ENT>101(a)(15)(G)(iv).</ENT> </ROW> <ROW> <ENT I="01">G5</ENT> <ENT>Attendant, Servant, or Personal Employee of G1 through G4, or Immediate Family</ENT> <ENT>101(a)(15)(G)(v).</ENT> </ROW> <ROW> <ENT I="01">H1B</ENT> <ENT>Alien in a Specialty Occupation (Profession)</ENT> <ENT>101(a)(15)(H)(i)(b).</ENT> </ROW> <ROW> <ENT I="01">H1B1</ENT> <ENT>Chilean or Singaporean National to Work in a Specialty Occupation</ENT> <ENT>101(a)(15)(H)(i)(b1).</ENT> </ROW> <ROW> <ENT I="01">H1C</ENT> <ENT>Nurse in Health Professional Shortage Area</ENT> <ENT>101(a)(15)(H)(i)(c).</ENT> </ROW> <ROW> <ENT I="01">H2A</ENT> <ENT>Temporary Worker Performing Agricultural Services Unavailable in the United States</ENT> <ENT>101(a)(15)(H)(ii)(a).</ENT> </ROW> <ROW> <ENT I="01">H2B</ENT> <ENT>Temporary Worker Performing Other Services Unavailable in the United States</ENT> <ENT>101(a)(15)(H)(ii)(b).</ENT> </ROW> <ROW> <ENT I="01">H3</ENT> <ENT>Trainee</ENT> <ENT>101(a)(15)(H)(iii).</ENT> </ROW> <ROW> <ENT I="01">H4</ENT> <ENT>Spouse or Child of Alien Classified H1B/B1/C, H2A/B/R, or H-3</ENT> <ENT>101(a)(15)(H)(iv).</ENT> </ROW> <ROW> <ENT I="01">I</ENT> <ENT>Representative of Foreign Information Media, Spouse and Child</ENT> <ENT>101(a)(15)(I).</ENT> </ROW> <ROW> <ENT I="01">J1</ENT> <ENT>Exchange Visitor</ENT> <ENT>101(a)(15)(J).</ENT> </ROW> <ROW> <ENT I="01">J2</ENT> <ENT>Spouse or Child of J1</ENT> <ENT>101(a)(15)(J).</ENT> </ROW> <ROW> <ENT I="01">K1</ENT> <ENT>Fiance(e) of United States Citizen</ENT> <ENT>101(a)(15)(K)(i).</ENT> </ROW> <ROW> <ENT I="01">K2</ENT> <ENT>Child of Fiance(e) of U.S. Citizen</ENT> <ENT>101(a)(15)(K)(iii).</ENT> </ROW> <ROW> <ENT I="01">K3</ENT> <ENT>Spouse of U.S. Citizen Awaiting Availability of Immigrant Visa</ENT> <ENT>101(a)(15)(K)(ii).</ENT> </ROW> <ROW> <ENT I="01">K4</ENT> <ENT>Child of K3</ENT> <ENT>101(a)(15)(K)(iii).</ENT> </ROW> <ROW> <ENT I="01">L1</ENT> <ENT>Intracompany Transferee (Executive, Managerial, and Specialized Knowledge Personnel Continuing Employment with International Firm or Corporation)</ENT> <ENT>101(a)(15)(L).</ENT> </ROW> <ROW> <ENT I="01">L2</ENT> <ENT>Spouse or Child of Intracompany Transferee</ENT> <ENT>101(a)(15)(L).</ENT> </ROW> <ROW> <ENT I="01">M1</ENT> <ENT>Vocational Student or Other Nonacademic Student</ENT> <ENT>101(a)(15)(M)(i).</ENT> </ROW> <ROW> <ENT I="01">M2</ENT> <ENT>Spouse or Child of M1</ENT> <ENT>101(a)(15)(M)(ii).</ENT> </ROW> <ROW> <ENT I="01">M3</ENT> <ENT>Canadian or Mexican National Commuter Student (Vocational Student or Other Nonacademic Student)</ENT> <ENT>101(a)(15)(M)(iii).</ENT> </ROW> <ROW> <ENT I="01">N8</ENT> <ENT>Parent of an Alien Classified SK3 or SN3</ENT> <ENT>101(a)(15)(N)(i).</ENT> </ROW> <ROW> <ENT I="01">N9</ENT> <ENT>Child of N8 or of SK1, SK2, SK4, SN1, SN2 or SN4</ENT> <ENT>101(a)(15)(N)(ii).</ENT> </ROW> <ROW> <PRTPAGE P="156"/> <ENT I="01">NATO 1</ENT> <ENT>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</ENT> <ENT>Art. 12, 5 UST 1094; Art. 20, 5 UST 1098.</ENT> </ROW> <ROW> <ENT I="01">NATO 2</ENT> <ENT>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</ENT> <ENT>Art. 13, 5 UST 1094; Art. 1, 4 UST 1794; Art. 3, 4 UST 1796.</ENT> </ROW> <ROW> <ENT I="01">NATO 3</ENT> <ENT>Official Clerical Staff Accompanying Representative of Member State to NATO (including any of its Subsidiary Bodies), or Immediate Family</ENT> <ENT>Art. 14, 5 UST 1096.</ENT> </ROW> <ROW> <ENT I="01">NATO 4</ENT> <ENT>Official of NATO (Other Than Those Classifiable as NATO1), or Immediate Family</ENT> <ENT>Art. 18, 5 UST 1098.</ENT> </ROW> <ROW> <ENT I="01">NATO 5</ENT> <ENT>Experts, Other Than NATO Officials Classifiable Under NATO4, Employed in Missions on Behalf of NATO, and their Dependents</ENT> <ENT>Art. 21, 5 UST 1100.</ENT> </ROW> <ROW> <ENT I="01">NATO 6</ENT> <ENT>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</ENT> <ENT>Art. 1, 4 UST 1794; Art. 3, 5 UST 877.</ENT> </ROW> <ROW> <ENT I="01">NATO 7</ENT> <ENT>Attendant, Servant, or Personal Employee of NATO1, NATO2, NATO3, NATO4, NATO5, and NATO6 Classes, or Immediate Family</ENT> <ENT>Arts. 12-20, 5 UST 1094-1098.</ENT> </ROW> <ROW> <ENT I="01">O1</ENT> <ENT>Alien with Extraordinary Ability in Sciences, Arts, Education, Business or Athletics</ENT> <ENT>101(a)(15)(O)(i).</ENT> </ROW> <ROW> <ENT I="01">O2</ENT> <ENT>Alien Accompanying and Assisting in the Artistic or Athletic Performance by O1</ENT> <ENT>101(a)(15)(O)(ii).</ENT> </ROW> <ROW> <ENT I="01">O3</ENT> <ENT>Spouse or Child of O1 or O2</ENT> <ENT>101(a)(15)(O)(iii).</ENT> </ROW> <ROW> <ENT I="01">P1</ENT> <ENT>Internationally Recognized Athlete or Member of Internationally Recognized Entertainment Group</ENT> <ENT>101(a)(15)(P)(i).</ENT> </ROW> <ROW> <ENT I="01">P2</ENT> <ENT>Artist or Entertainer in a Reciprocal Exchange Program</ENT> <ENT>101(a)(15)(P)(ii).</ENT> </ROW> <ROW> <ENT I="01">P3</ENT> <ENT>Artist or Entertainer in a Culturally Unique Program</ENT> <ENT>101(a)(15)(P)(iii).</ENT> </ROW> <ROW> <ENT I="01">P4</ENT> <ENT>Spouse or Child of P1, P2, or P3</ENT> <ENT>101(a)(15)(P)(iv).</ENT> </ROW> <ROW> <ENT I="01">Q1</ENT> <ENT>Participant in an International Cultural Exchange Program</ENT> <ENT>101(a)(15)(Q)(i).</ENT> </ROW> <ROW> <ENT I="01">Q2</ENT> <ENT>Irish Peace Process Program Participant</ENT> <ENT>101(a)(15)(Q)(ii)(I).</ENT> </ROW> <ROW> <ENT I="01">Q3</ENT> <ENT>Spouse or Child of Q2</ENT> <ENT>101(a)(15)(Q)(ii)(II).</ENT> </ROW> <ROW> <ENT I="01">R1</ENT> <ENT>Alien in a Religious Occupation</ENT> <ENT>101(a)(15)(R).</ENT> </ROW> <ROW> <ENT I="01">R2</ENT> <ENT>Spouse or Child of R1</ENT> <ENT>101(a)(15)(R).</ENT> </ROW> <ROW> <ENT I="01">S5</ENT> <ENT>Certain Aliens Supplying Critical Information Relating to a Criminal Organization or Enterprise</ENT> <ENT>101(a)(15)(S)(i).</ENT> </ROW> <ROW> <ENT I="01">S6</ENT> <ENT>Certain Aliens Supplying Critical Information Relating to Terrorism</ENT> <ENT>101(a)(15)(S)(ii).</ENT> </ROW> <ROW> <ENT I="01">S7</ENT> <ENT>Qualified Family Member of S5 or S6</ENT> <ENT>101(a)(15)(S).</ENT> </ROW> <ROW> <ENT I="01">T1</ENT> <ENT>Victim of a Severe Form of Trafficking in Persons</ENT> <ENT>101(a)(15)(T)(i).</ENT> </ROW> <ROW> <ENT I="01">T2</ENT> <ENT>Spouse of T1</ENT> <ENT>101(a)(15)(T)(ii).</ENT> </ROW> <ROW> <ENT I="01">T3</ENT> <ENT>Child of T1</ENT> <ENT>101(a)(15)(T)(ii).</ENT> </ROW> <ROW> <ENT I="01">T4</ENT> <ENT>Parent of T1 Under 21 Years of Age</ENT> <ENT>101(a)(15)(T)(ii).</ENT> </ROW> <ROW> <ENT I="01">T5</ENT> <ENT>Unmarried Sibling Under Age 18 of T1 Under 21 Years of Age</ENT> <ENT>101(a)(15)(T)(ii).</ENT> </ROW> <ROW> <ENT I="01">TN</ENT> <ENT>NAFTA Professional</ENT> <ENT>214(e)(2).</ENT> </ROW> <ROW> <ENT I="01">TD</ENT> <ENT>Spouse or Child of NAFTA Professional</ENT> <ENT>214(e)(2).</ENT> </ROW> <ROW> <ENT I="01">U1</ENT> <ENT>Victim of Criminal Activity</ENT> <ENT>101(a)(15)(U)(i).</ENT> </ROW> <ROW> <ENT I="01">U2</ENT> <ENT>Spouse of U1</ENT> <ENT>101(a)(15)(U)(ii).</ENT> </ROW> <ROW> <ENT I="01">U3</ENT> <ENT>Child of U1</ENT> <ENT>101(a)(15)(U)(ii).</ENT> </ROW> <ROW> <ENT I="01">U4</ENT> <ENT>Parent of U1 Under 21 Years of Age</ENT> <ENT>101(a)(15)(U)(ii).</ENT> </ROW> <ROW> <ENT I="01">U5</ENT> <ENT>Unmarried Sibling Under Age 18 of U1 Under 21 Years of Age</ENT> <ENT>101(a)(15)(U)(ii).</ENT> </ROW> <ROW> <ENT I="01">V1</ENT> <ENT>Spouse of a Lawful Permanent Resident Alien Awaiting Availability of Immigrant Visa</ENT> <ENT>101(a)(15)(V)(i) or 101(a)(15)(V)(ii).</ENT> </ROW> <ROW> <PRTPAGE P="157"/> <ENT I="01">V2</ENT> <ENT>Child of a Lawful Permanent Resident Alien Awaiting Availability of Immigrant Visa</ENT> <ENT>101(a)(15)(V)(i) or 101(a)(15)(V)(ii).</ENT> </ROW> <ROW> <ENT I="01">V3</ENT> <ENT>Child of a V1 or V2</ENT> <ENT>203(d) & 101(a)(15)(V)(i) or 101(a)(15)(V)(ii).</ENT> </ROW> </GPOTABLE> <CITA>[73 FR 14929, Mar. 20, 2008]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Foreign Government Officials</HD> <SECTION> <SECTNO>§ 41.21</SECTNO> <SUBJECT>Foreign Oficials—General.</SUBJECT> <P>(a) <E T="03">Definitions.</E> In addition to pertinent INA definitions, the following definitions are applicable:</P> <P>(1) <E T="03">Accredited,</E> 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.</P> <P>(2) <E T="03">Attendants,</E> 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.</P> <P>(3) <E T="03">Immediate family,</E> as used in INA 101(a)(15)(A), 101(a)(15)(G), and 212(d)(8), and in classification under the NATO-1 through NATO-5 visa symbols, means the spouse and unmarried sons and daughters, whether by blood or adoption, who are not members of some other household, and who will reside regularly in the household of the principal alien. “Immediate family” also includes any other close relatives of the principal alien or spouse who:</P> <P>(i) Are relatives of the principal alien or spouse by blood, marriage, or adoption;</P> <P>(ii) Are not members of some other household;</P> <P>(iii) Will reside regularly in the household of the principal alien;</P> <P>(iv) Are recognized as dependents by the sending Government as demonstrated by eligibility for rights and benefits, such as the issuance of a diplomatic or official passport and travel and other allowances, which would be granted to the spouse and children of the principal alien; and</P> <P>(v) Are individually authorized by the Department.</P> <P>(4) <E T="03">Servants</E> and <E T="03">personal employees,</E> 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.</P> <P>(b) <E T="03">Exception to passport validity requirement for aliens in certain A, G, and NATO classes.</E> 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:</P> <P>(1) Described in INA 101(a)(15)(A)(i) and (ii); or</P> <P>(2) Described in INA 101(a)(15)(G)(i), (ii), (iii), and (iv); or</P> <P>(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.</P> <P>(c) <E T="03">Exception to passport validity requirement for foreign government officials in transit.</E> 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.</P> <P>(d) <E T="03">Grounds for refusal of visas applicable to certain A, C, G, and NATO classes.</E> (1) An A-1 or A-2 visa may not be issued to an alien the Department has determined to be persona non grata.<PRTPAGE P="158"/> </P> <P>(2) Only the provisions of INA 212(a) cited below apply to the indicated classes of nonimmigrant visa applicants:</P> <P>(i) Class A-1: INA 212(a) (3)(A), (3)(B), and (3)(C);</P> <P>(ii) Class A-2: INA 212(a) (3)(A), (3)(B), and (3)(C);</P> <P>(iii) Classes C-2 and C-3: INA 212(a) (3)(A), (3)(B), (3)(C), and (7)(B);</P> <P>(iv) Classes G-1, G-2, G-3, and G-4: INA 212(a) (3)(A), (3)(B), and (3)(C);</P> <P>(v) Classes NATO-1, NATO-2, NATO-3, NATO-4, and NATO-6: INA 212(a) (3)(A), (3)(B), and (3)(C);</P> <P>(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.</P> <P>(4) Notwithstanding the provisions of Section 5(a) and consistent with Section 5(f)(2) of the Tom Lantos Block Burmese JADE (Junta's Anti-Democratic Efforts) Act of 2008, Public Law 110-286, visas may be issued to visa applicants who are otherwise ineligible for a visa to travel to the United States under section 5(a)(1) of the Act:</P> <P>(i) 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;</P> <P>(ii) To permit the United States to comply with the United Nations Headquarters Agreement and other applicable international agreements.</P> <CITA>[52 FR 42597, Nov. 5, 1987; 53 FR 9111, Mar. 21, 1988, as amended at 56 FR 30428, July 2, 1991; 73 FR 56729, Sept. 30, 2008]</CITA> </SECTION> <SECTION> <SECTNO>§ 41.22</SECTNO> <SUBJECT>Officials of foreign governments.</SUBJECT> <P>(a) <E T="03">Criteria for classification of foreign government officials.</E> (1) An alien is classifiable A-1 or A-2 under INA 101(a)(15)(A) (i) or (ii) if the principal alien:</P> <P>(i) Has been accredited by a foreign government recognized de jure by the United States;</P> <P>(ii) Intends to engage solely in official activities for that foreign government while in the United States; and</P> <P>(iii) Has been accepted by the President, the Secretary of State, or a consular officer acting on behalf of the Secretary of State.</P> <P>(2) A member of the immediate family of a principal alien is classifiable A-1 or A-2 under INA 101(a)(15)(A) (i) or (ii) if the principal alien is so classified.</P> <P>(b) <E T="03">Classification under INA 101(a)(15)(A).</E> An alien entitled to classification under INA 101(a)(15)(A) shall be classified under this section even if eligible for another nonimmigrant classification.</P> <P>(c) <E T="03">Classification of attendants, servants, and personal employees.</E> 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.</P> <P>(d) <E T="03">Referral to the Department of special cases concerning principal alien applicants.</E> 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.</P> <P>(e) <E T="03">Change of classification to that of a foreign government official.</E> 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.</P> <P>(f) <E T="03">Termination of status.</E> 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.</P> <P>(g) <E T="03">Classification of foreign government official.</E> 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).</P> <P>(h) <E T="03">Courier and acting courier on official business</E>—(1) <E T="03">Courier of career.</E> 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 <PRTPAGE P="159"/>States on official business for that government.</P> <P>(2) <E T="03">Official acting as courier.</E> 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.</P> <P>(3) <E T="03">Nonofficial serving as courier.</E> 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).</P> <P>(i) <E T="03">Official of foreign government not recognized by the United States.</E> 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).</P> </SECTION> <SECTION> <SECTNO>§ 41.23</SECTNO> <SUBJECT>Accredited officials in transit.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 41.24</SECTNO> <SUBJECT>International organization aliens.</SUBJECT> <P>(a) <E T="03">Definition of international organization.</E> “International organization” means:</P> <P>(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</P> <P>(2) For the purpose of special immigrant status under INA 101(a)(27)(I), INTELSAT or any successor or separated entity thereof.</P> <P>(b) <E T="03">Aliens coming to international organizations.</E> (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 101(a)(15)(G).</P> <P>(2) An alien applying for a visa under the provisions of INA 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.</P> <P>(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 101(a)(15)(A), shall be issued a visa under that section, if otherwise qualified.</P> <P>(4) An alien not classifiable under INA 101(a)(15)(A) but entitled to classification under INA 101(a)(15)(G) shall be classified under the latter section, even if also eligible for another nonimmigrant classification.</P> <P>(c) <E T="03">Officers and employees of privatized INTELSAT, their family members and domestic servants.</E> (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.</P> <P>(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.<PRTPAGE P="160"/> </P> <P>(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.</P> <P>(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).</P> <CITA>[52 FR 42597, Nov. 5, 1987, as amended at 67 FR 1414, Jan. 11, 2002; 67 FR 18822, Apr. 17, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 41.25</SECTNO> <SUBJECT>NATO representatives, officials, and employees.</SUBJECT> <P>(a) <E T="03">Classification.</E> 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.)</P> <P>(b) <E T="03">Armed services personnel.</E> 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.</P> <P>(c) <E T="03">Dependents of armed services personnel.</E> Dependents of armed services personnel referred to in paragraph (b) of this section shall be classified under the symbol NATO-2.</P> <P>(d) <E T="03">Members of civilian components and dependents.</E> 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.</P> <P>(e) <E T="03">Attendant, servant, or personal employee of an alien classified NATO-1 through NATO-6.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 41.26</SECTNO> <SUBJECT>Diplomatic visas.</SUBJECT> <P>(a) <E T="03">Definitions.</E> (1) <E T="03">Diplomatic passport</E> means a national passport bearing that title and issued by a competent authority of a foreign government.</P> <P>(2) <E T="03">Diplomatic visa</E> means any nonimmigrant visa, regardless of classification, which bears that title and is issued in accordance with the regulations of this section.</P> <P>(3) <E T="03">Equivalent of a diplomatic passport</E> means a national passport, issued by a competent authority of a foreign government which does not issue diplomatic passports to its career diplomatic and consular officers, indicating the career diplomatic or consular status of the bearer.</P> <P>(b) <E T="03">Place of application.</E> 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.</P> <P>(c) <E T="03">Classes of aliens eligible to receive diplomatic visas.</E> (1) A nonimmigrant alien who is in possession of a diplomatic passport or its equivalent shall, if otherwise qualified, be eligible to receive a diplomatic visa irrespective of the classification of the visa under <PRTPAGE P="161"/>§ 41.12 if within one of the following categories:</P> <P>(i) Heads of states and their alternates;</P> <P>(ii) Members of a reigning royal family;</P> <P>(iii) Governors-general, governors, high commissioners, and similar high administrative or executive officers of a territorial unit, and their alternates;</P> <P>(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;</P> <P>(v) Presiding officers of chambers of national legislative bodies;</P> <P>(vi) Justices of the highest national court of a foreign country;</P> <P>(vii) Ambassadors, public ministers, other officers of the diplomatic service and consular officers of career;</P> <P>(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;</P> <P>(ix) Military, naval, air and other attaché and assistant attaché assigned to a foreign diplomatic mission;</P> <P>(x) Officers of foreign-government delegations to international organizations so designated by Executive Order;</P> <P>(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;</P> <P>(xii) Officers of a diplomatic mission of a temporary character proceeding to or through the United States in the performance of their official duties;</P> <P>(xiii) Officers of foreign-government delegations proceeding to or from a specific international conference of an official nature;</P> <P>(xiv) Members of the immediate family of a principal alien who is within one of the classes described in paragraphs (c)(1)(i) to (c)(1)(xi) inclusive, of this section;</P> <P>(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;</P> <P>(xvi) Diplomatic couriers proceeding to or through the United States in the performance of their official duties.</P> <P>(2) Aliens Classifiable G-4, who are otherwise qualified, are eligible to receive a diplomatic visa if accompanying these officers:</P> <P>(i) The Secretary General of the United Nations;</P> <P>(ii) An Under Secretary General of the United Nations;</P> <P>(iii) An Assistant Secretary General of the United Nations;</P> <P>(iv) The Administrator or the Deputy Administrator of the United Nations Development Program;</P> <P>(v) An Assistant Administrator of the United Nations Development Program;</P> <P>(vi) The Executive Director of the:</P> <P>(A) United Nation's Children's Fund;</P> <P>(B) United Nations Institute for Training and Research;</P> <P>(C) United Nations Industrial Development Organization;</P> <P>(vii) The Executive Secretary of the:</P> <P>(A) United Nations Economic Commission for Africa;</P> <P>(B) United Nations Economic Commission for Asia and the Far East;</P> <P>(C) United Nations Economic Commission for Latin America;</P> <P>(D) United Nations Economic Commission for Europe;</P> <P>(viii) The Secretary General of the United Nations Conference on Trade and Development;</P> <P>(ix) The Director General of the Latin American Institute for Economic and Social Planning;</P> <P>(x) The United Nations High Commissioner for Refugees;</P> <P>(xi) The United Nations Commissioner for Technical Cooperation;</P> <P>(xii) The Commissioner General of the United Nations Relief and Works Agency for Palestine Refugees in the Near East;</P> <P>(xiii) The spouse or child of any nonimmigrant alien listed in paragraphs (c)(2)(i) through (c)(2)(xii) of this section.</P> <P>(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 <PRTPAGE P="162"/>Mission, the Counselor for Consular Affairs or the principal officer of a consular post not under the jurisdiction of a diplomatic mission.</P> <CITA>[52 FR 42597, Nov. 5, 1987; 53 FR 9111, Mar. 21, 1988]</CITA> </SECTION> <SECTION> <SECTNO>§ 41.27</SECTNO> <SUBJECT>Official visas.</SUBJECT> <P>(a) <E T="03">Definition. Official visa</E> means any nonimmigrant visa, regardless of classification, which bears that title and is issued in accordance with these regulations.</P> <P>(b) <E T="03">Place of application.</E> 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).</P> <P>(c) <E T="03">Classes of aliens eligible to receive official visas.</E> (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:</P> <P>(i) Aliens within a class described in § 41.26(c)(2) who are ineligible to receive a diplomatic visa because they are not in possession of a diplomatic passport or its equivalent;</P> <P>(ii) Aliens classifiable under INA 101(a)(15)(A);</P> <P>(iii) Aliens, other than those described in § 41.26(c)(3) who are classifiable under INA 101(a)(15)(G), except those classifiable under INA 101(a)(15)(G)(iii) unless the government of which the alien is an accredited representative is recognized <E T="03">de jure</E> by the United States;</P> <P>(iv) Aliens classifiable under INA 101(a)(15)(C) as nonimmigrants described in INA 212(d)(8);</P> <P>(v) Members and members-elect of national legislative bodies;</P> <P>(vi) Justices of the lesser national and the highest state courts of a foreign country;</P> <P>(vii) Officers and employees of national legislative bodies proceeding to or through the United States in the performance of their official duties;</P> <P>(viii) Clerical and custodial 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;</P> <P>(ix) Clerical and custodial employees attached to a diplomatic mission of a temporary character proceeding to or through the United States in the performance of their official duties;</P> <P>(x) Clerical and custodial employees attached to foreign-government delegations proceeding to or from a specific international conference of an official nature;</P> <P>(xi) Officers and employees of foreign governments recognized <E T="03">de jure</E> by the United States who are stationed in foreign contiguous territories or adjacent islands;</P> <P>(xii) Members of the immediate family, attendants, servants and personal employees of, 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 (c)(1)(xi) inclusive of this section;</P> <P>(xiii) Attendants, servants and personal employees 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 (c)(1)(xiii) inclusive of § 41.26(c)(2).</P> <P>(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.</P> <CITA>[52 FR 42597, Nov. 5, 1987; 53 FR 9111, Mar. 21, 1988]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Temporary Visitors</HD> <SECTION> <SECTNO>§ 41.31</SECTNO> <SUBJECT>Temporary visitors for business or pleasure.</SUBJECT> <P>(a) <E T="03">Classification.</E> An alien is classifiable as a nonimmigrant visitor for <PRTPAGE P="163"/>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:</P> <P>(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);</P> <P>(2) The alien has permission to enter a foreign country at the end of the temporary stay; and</P> <P>(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.</P> <P>(b) <E T="03">Definitions.</E> (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.</P> <P>(2) The term <E T="03">pleasure,</E> as used in INA 101(a)(15)(B), 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.</P> <CITA>[52 FR 42597, Nov. 5, 1987; 53 FR 9172, Mar. 21, 1988]</CITA> </SECTION> <SECTION> <SECTNO>§ 41.32</SECTNO> <SUBJECT>Nonresident alien Mexican border crossing identification cards; combined border crossing identification cards and B-1/B-2 visitor visas.</SUBJECT> <P>(a) <E T="03">Combined B-1/B-2 visitor visa and border crossing identification card (B-1/B-2 Visa/BCC)</E>—(1) <E T="03">Authorization for issuance.</E> 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:</P> <P>(i) Is a citizen and resident of Mexico;</P> <P>(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;</P> <P>(iii) Is otherwise eligible for a B-1 or a B-2 temporary visitor visa.</P> <P>(2) <E T="03">Procedure for application.</E> 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.</P> <P>(3) <E T="03">Personal appearance.</E> 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.</P> <P>(4) <E T="03">Issuance and format.</E> A B-1/B-2 Visa/BCC issued on or after April 1, <PRTPAGE P="164"/>1998, shall consist of a card, Form DSP-150, containing a machine-readable biometric identifier. It shall contain the following data:</P> <P>(i) Post symbol;</P> <P>(ii) Number of the card;</P> <P>(iii) Date of issuance;</P> <P>(iv) Indicia “B-1/B-2 Visa and Border Crossing Card”;</P> <P>(v) Name, date of birth, and sex of the person to whom issued; and</P> <P>(vi) Date of expiration.</P> <P>(b) <E T="03">Validity.</E> 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.</P> <P>(c) <E T="03">Revocation.</E> 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.</P> <P>(d) <E T="03">Voidance.</E> (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.</P> <P>(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.</P> <P>(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.</P> <P>(e) <E T="03">Replacement.</E> 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.</P> <CITA>[64 FR 45163, Aug. 19, 1999, as amended at 71 FR 30591, May 30, 2006; 71 FR 34521, June 15, 2006; 73 FR 23068, Apr. 29, 2008]</CITA> </SECTION> <SECTION> <SECTNO>§ 41.33</SECTNO> <SUBJECT>Nonresident alien Canadian border crossing identification card (BCC).</SUBJECT> <P>(a) <E T="03">Validity of Canadian BCC.</E> 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.</P> <P>(b) <E T="03">Revocation of Canadian BCC.</E> 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 <PRTPAGE P="165"/>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.</P> <P>(c) <E T="03">Voidance.</E> (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.</P> <P>(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.</P> <P>(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.</P> <CITA>[64 FR 45164, Aug. 19, 1999]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart E—Crewman and Crew-List Visas</HD> <SECTION> <SECTNO>§ 41.41</SECTNO> <SUBJECT>Crewmen.</SUBJECT> <P>(a) <E T="03">Alien classifiable as crewman.</E> 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).</P> <P>(b) <E T="03">Alien not classifiable as crewman.</E> 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.</P> <CITA>[52 FR 42597, Nov. 5, 1987, as amended at 66 FR 10364, Feb. 15, 2001]</CITA> </SECTION> <SECTION> <SECTNO>§ 41.42</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart F—Business and Media Visas</HD> <SECTION> <SECTNO>§ 41.51</SECTNO> <SUBJECT>Treaty trader, treaty investor, or treaty alien in a specialty occupation.</SUBJECT> <P>(a) <E T="03">Treaty trader</E>—(1) <E T="03">Classification.</E> 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:</P> <P>(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</P> <P>(ii) Intends to depart from the United States upon the termination of E-1 status.</P> <P>(2) <E T="03">Employee of treaty trader.</E> 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:</P> <P>(i) A person having the nationality of the treaty country, who is maintaining the status of treaty trader if in the <PRTPAGE P="166"/>United States or, if not in the United States, would be classifiable as a treaty trader; or</P> <P>(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.</P> <P>(3) <E T="03">Spouse and children of treaty trader.</E> 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).</P> <P>(4) <E T="03">Representative of foreign information media.</E> 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.</P> <P>(5) <E T="03">Treaty country.</E> 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).</P> <P>(6) <E T="03">Nationality of the treaty country.</E> 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.</P> <P>(7) <E T="03">Trade.</E> 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.</P> <P>(8) <E T="03">Item of trade.</E> 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.</P> <P>(9) <E T="03">Substantial trade.</E> 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.</P> <P>(10) <E T="03">Principal trade.</E> 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.</P> <P>(11) <E T="03">Executive or supervisory character.</E> 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.</P> <P>(i) An executive position provides the employee great authority to determine policy of and direction for the enterprise.</P> <P>(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.<PRTPAGE P="167"/> </P> <P>(12) <E T="03">Special qualifications.</E> 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.</P> <P>(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.</P> <P>(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.</P> <P>(13) <E T="03">Labor disputes.</E> 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:</P> <P>(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</P> <P>(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.</P> <P>(b) <E T="03">Treaty investor</E>—(1) <E T="03">Classification.</E> 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:</P> <P>(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</P> <P>(ii) Is seeking entry solely to develop and direct the enterprise; and</P> <P>(iii) Intends to depart from the United States upon the termination of E'2 status.</P> <P>(2) <E T="03">Employee of treaty investor.</E> 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:</P> <P>(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</P> <P>(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.</P> <P>(3) <E T="03">Spouse and children of treaty investor.</E> 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).</P> <P>(4) <E T="03">Representative of foreign information media.</E> 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.<PRTPAGE P="168"/> </P> <P>(5) <E T="03">Treaty country.</E> 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).</P> <P>(6) <E T="03">Nationality of the treaty country.</E> 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.</P> <P>(7) <E T="03">Investment.</E> 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.</P> <P>(8) <E T="03">Bona fide enterprise.</E> 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.</P> <P>(9) <E T="03">Substantial amount of capital.</E> A substantial amount of capital constitutes that amount that is:</P> <P>(i)(A) Substantial in the proportional sense, <E T="03">i.e.</E>, in relationship to the total cost of either purchasing an established enterprise or creating the type of enterprise under consideration;</P> <P>(B) Sufficient to ensure the treaty investor's financial commitment to the successful operation of the enterprise; and</P> <P>(C) Of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise.</P> <P>(ii) Whether an amount of capital is substantial in the proportionality sense is understood in terms of an inverted sliding scale; <E T="03">i.e.</E>, the lower the total cost of the enterprise, the higher, proportionately, the investment must be to meet these criteria.</P> <P>(10) <E T="03">Marginal enterprise.</E> 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.</P> <P>(11) <E T="03">Solely to develop and direct.</E> 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.</P> <P>(12) <E T="03">Executive or supervisory character.</E> 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.</P> <P>(i) An executive position provides the employee great authority to determine policy of and direction for the enterprise.</P> <P>(ii) A position primarily of supervisory character grants the employee <PRTPAGE P="169"/>supervisory responsibility for a significant proportion of an enterprise's operations and does not generally involve the direct supervision of low-level employees.</P> <P>(13) <E T="03">Special qualifications.</E> 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.</P> <P>(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.</P> <P>(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.</P> <P>(14) <E T="03">Labor disputes.</E> 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:</P> <P>(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</P> <P>(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.</P> <P>(c) <E T="03">Nonimmigrant E-3 treaty aliens in specialty occupations</E>—(1) <E T="03">Classification.</E> 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:</P> <P>(i) Possesses the nationality of the country statutorily designated for treaty aliens in specialty occupation status;</P> <P>(ii) Satisfies the requirements of INA 214(i)(1) and the corresponding regulations defining specialty occupation promulgated by the Department of Homeland Security;</P> <P>(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);</P> <P>(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);</P> <P>(v) Has a visa number allocated under INA 214(g)(11)(B); and,</P> <P>(vi) Intends to depart upon the termination of E-3 status.</P> <P>(2) <E T="03">Spouse and children of treaty alien in a specialty occupation.</E> 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).</P> <CITA>[70 FR 52293, Sept. 2, 2005]</CITA> </SECTION> <SECTION> <PRTPAGE P="170"/> <SECTNO>§ 41.52</SECTNO> <SUBJECT>Information media representative.</SUBJECT> <P>(a) <E T="03">Representative of foreign press, radio, film, or other information media.</E> 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.</P> <P>(b) <E T="03">Classification when applicant eligible for both I visa and E visa.</E> 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).</P> <P>(c) <E T="03">Spouse and children of information media representative.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 41.53</SECTNO> <SUBJECT>Temporary workers and trainees.</SUBJECT> <P>(a) <E T="03">Requirements for H classification.</E> An alien shall be classifiable under INA 101(a)(15)(H) if:</P> <P>(1) The consular officer is satisfied that the alien qualifies under that section; and either</P> <P>(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</P> <P>(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.</P> <P>(b) <E T="03">Petition approval.</E> 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.</P> <P>(c) <E T="03">Validity of visa.</E> 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.</P> <P>(d) <E T="03">Alien not entitled to H classification.</E> 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.</P> <P>(e) <E T="03">“Trainee” defined.</E> The term <E T="03">Trainee,</E> 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.</P> <P>(f) <E T="03">Former exchange visitor.</E> 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.</P> <CITA>[57 FR 31449, July 16, 1992; as amended at 61 FR 1833, Jan. 24, 1996; 65 FR 52306, Aug. 29, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 41.54</SECTNO> <SUBJECT>Intracompany transferees (executives, managers, and specialists).</SUBJECT> <P>(a) <E T="03">Requirements for L classification.</E> An alien shall be classifiable under the provisions of INA 101(a)(15)(L) if:</P> <P>(1) The consular officer is satisfied that the alien qualifies under that section; and either</P> <P>(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</P> <P>(3) In the case of a blanket petition, the alien has presented to the consular <PRTPAGE P="171"/>officer official evidence of the approval by DHS of a blanket petition</P> <P>(i) listing only those intracompany relationships and positions found to qualify under INA 101(a)(15)(L) or</P> <P>(ii) to accord such classification to qualified aliens who are being transferred to qualifying positions identified in such blanket petition; or</P> <P>(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.</P> <P>(b) <E T="03">Petition approval.</E> The approval of a petition by DHS does not establish that the alien is eligible to receive a nonimmigrant visa.</P> <P>(c) <E T="03">Validity of visa.</E> (1) 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)(i) or (ii) of this section.</P> <P>(2) The period of validity of a visa issued on the basis of paragraph (a) to this section is not limited to the period of validity indicated in the blanket petition, notification, or confirmation required in paragraphs (a)(2)(iii) or (iv) of this section.</P> <P>(d) <E T="03">Alien not entitled to L-1 classification under individual petition.</E> 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 101(a)(15)(L) is not entitled to such classification as approved.</P> <P>(e) <E T="03">Labor disputes.</E> 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:</P> <P>(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</P> <P>(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.</P> <P>(f) <E T="03">Alien not entitled to L-1 classification under blanket petition.</E> 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</P> <P>(1) The alien has been continuously employed by the same employer, an affiliate or a subsidiary thereof, for 1 year within the 3 years immediately preceding the application for the L visa;</P> <P>(2) The alien was occupying a qualifying position throughout that year; or</P> <P>(3) The alien is destined to a qualifying position identified in the petition and in an organization listed in the petition.</P> <P>(g) <E T="03">Former exchange visitor.</E> Former exchange visitors who are subject to the 2-year foreign residence requirement of INA 212(e) are ineligible to apply for visas under INA 101(a)(15)(L) until they have fulfilled the residence requirement or obtained a waiver of the requirement.</P> <CITA>[57 FR 31449, July 16, 1992, as amended at 58 FR 68527, Dec. 28, 1993; 61 FR 1833, Jan. 24, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 41.55</SECTNO> <SUBJECT>Aliens with extraordinary ability.</SUBJECT> <P>(a) <E T="03">Requirements for O classification.</E> An alien shall be classifiable under the provisions of INA 101(a)(15)(O) if:</P> <P>(1) The consular officer is satisfied that the alien qualifies under the provisions of that section; and either</P> <P>(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</P> <P>(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.</P> <P>(b) <E T="03">Approval of visa.</E> The approval of a petition by DHS does not establish that the alien is eligible to receive a nonimmigrant visa.</P> <P>(c) <E T="03">Validity of visa.</E> The period of validity of a visa issued on the basis of paragraph (a) to this section must not <PRTPAGE P="172"/>exceed the period indicated in the petition, notification, or confirmation required in paragraph (a)(2) of this section.</P> <P>(d) <E T="03">Alien not entitled to O classification.</E> 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.</P> <CITA>[57 FR 31450, July 16, 1992; as amended at 61 FR 1833, Jan. 24, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 41.56</SECTNO> <SUBJECT>Athletes, artists and entertainers.</SUBJECT> <P>(a) <E T="03">Requirements for P classification.</E> An alien shall be classifiable under the provisions of INA 101(a)(15)(P) if:</P> <P>(1) The consular officer is satisfied that the alien qualifies under the provisions of that section; and either</P> <P>(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</P> <P>(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.</P> <P>(b) <E T="03">Approval of visa.</E> The approval of a petition by DHS does not establish that the alien is eligible to receive a nonimmigrant visa.</P> <P>(c) <E T="03">Validity of visa.</E> 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.</P> <P>(d) <E T="03">Alien not entitled to P classification.</E> 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.</P> <CITA>[57 FR 31450, July 16, 1992; as amended at 61 FR 1833, Jan. 24, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 41.57</SECTNO> <SUBJECT>International cultural exchange visitors and visitors under the Irish Peace Process Cultural and Training Program Act (IPPCTPA).</SUBJECT> <P>(a) <E T="03">International cultural exchange visitors</E>—(1) <E T="03">Requirements for classification under INA section 101(a)(15)(Q)(i).</E> A consular officer may classify an alien under the provisions of INA 101(a)(15)(Q)(i) if:</P> <P>(i) The consular officer is satisfied that the alien qualifies under the provisions of that section, and</P> <P>(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.</P> <P>(2) <E T="03">Approval of petition.</E> DHS approval of a petition does not establish that the alien is eligible to receive a nonimmigrant visa.</P> <P>(3) <E T="03">Validity of visa.</E> 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.</P> <P>(4) <E T="03">Alien not entitled to Q classification.</E> 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).</P> <P>(b) <E T="03">Trainees under INA section 101(a)(15)(Q)(ii)</E>—(1) <E T="03">Requirements for classification under INA section 101(a)(15)(Q)(ii).</E> A consular officer may classify an alien under the provisions of INA section 101(a)(15)(Q)(ii) if:</P> <P>(i) The consular officer is satisfied that the alien qualifies under the provisions of that section;</P> <P>(ii) The consular officer has received a certification letter prepared by a program administration charged by the Department of State in consultation with the Department of Justice with the operation of the Irish Peace Process Cultural and Training Program (IPPCTP) which establishes at a minimum:</P> <P>(A) The name of the alien's employer in the United States, and, if applicable, in Ireland or Northern Ireland;</P> <P>(B) If the alien is participating in the IPPCTP as an unemployed alien, that <PRTPAGE P="173"/>the employment in the United States is in an occupation designated by the employment and training administration of the alien's place of residence as being most beneficial to the local economy;</P> <P>(C) That the program administrator has accepted the alien into the program;</P> <P>(D) That the alien has been physically resident in Northern Ireland or in the counties of Louth, Monaghan, Cavan, Leitrim, Sligo, and Donegal in the Republic of Ireland and the length of time immediately prior to the issuance of the letter that the alien has claimed such place as his or her residence;</P> <P>(E) The alien's date and place of birth;</P> <P>(F) If the alien is participating in the IPPCTP as an already employed participant, the length of time immediately prior to the issuance of the letter that the alien has been employed by an employer in the alien's place of physical residence;</P> <P>(iii) If applicable, the consular officer is satisfied the alien is the spouse or child of an alien classified under INA section 101(a)(15)(Q)(ii), and is accompanying or following to join the principal alien.</P> <P>(2) <E T="03">Aliens not entitled to such classification.</E> The consular officer must suspend action on the alien's application and notify the alien and the designated program administrator described in paragraph (b)(1)(ii) of this section if the consular officer knows or has reason to believe that an alien does not qualify under INA section 101(a)(15)(Q)(ii).</P> <CITA>[65 FR 14770, Mar. 17, 2000, as amended at 66 FR 52502, Oct. 16, 2001]</CITA> </SECTION> <SECTION> <SECTNO>§ 41.58</SECTNO> <SUBJECT>Aliens in religious occupations.</SUBJECT> <P>(a) <E T="03">Requirements for “R” classification.</E> An alien shall be classifiable under the provisions of INA 101(a)(15)(R) if:</P> <P>(1) The consular officer is satisfied that the alien qualifies under the provisions of that section; and</P> <P>(2) The alien, for the 2 years immediately preceding the time of application for admission, has been a member of a religious denomination having a bona fide nonprofit, religious organization in the United States; and</P> <P>(3) The alien seeks to enter the United States solely for the purpose of</P> <P>(i) Carrying on the vocation of a minister of that religious denomination, or</P> <P>(ii) At the request of the organization, working in a professional capacity in a religious vocation or occupation for that organization, or</P> <P>(iii) At the request of the organization, working in a religious vocation or occupation for the organization, or for a bona fide organization which is affiliated with the religious denomination described in section 501(c)(3) of the Internal Revenue Code of 1986; and</P> <P>(4) The alien is seeking to enter the United States for a period not to exceed 5 years to perform the activities described in paragraph (3) of this section; or</P> <P>(5) The alien is the spouse or child of an alien so classified and is accompanying or following to join the principal alien.</P> <P>(b) <E T="03">Religious denomination.</E> A religious denomination is a religious group or community of believers. Among the factors that may be considered in determining whether a group constitutes a bona fide religious denomination are the presence of some form of ecclesiastical government, a recognized creed and form of worship, a formal code of doctrine and discipline, religious services and ceremonies, established places of religious worship, and religious congregations. For purposes of this definition, an interdenominational religious organization which is exempt from taxation pursuant to section 501(c)(3) of the Internal Revenue Code of 1986 will be treated as a religious denomination.</P> <P>(c) <E T="03">Bona fide nonprofit religious organization in the United States.</E> For purposes of this section, a bona fide nonprofit religious organization is an organization exempt from taxation as described in section 501(c)(3) of the Internal Revenue Code of 1986, as it relates to religious organizations, or one that has never sought such exemption but establishes to the satisfaction of the consular officer that it would be eligible therefore if it had applied for tax exempt status.</P> <P>(d) <E T="03">Bona fide organization which is affiliated with the religious denomination.</E> A bona fide organization affiliated with <PRTPAGE P="174"/>the religious denomination is an organization which is both closely associated with the religious denomination and exempt from taxation as described in section 501(c)(3) of the Internal Revenue Code of 1986, as it relates to religious organizations.</P> <P>(e) <E T="03">Minister of religion.</E> A minister is an individual who is duly authorized by a recognized religious denomination to conduct religious worship and to perform other duties usually performed by authorized members of the clergy of that religion. A minister does not include a lay preacher who is not authorized to perform such duties. In all cases, there must be a reasonable connection between the activities performed and the religious calling of a minister.</P> <P>(f) <E T="03">Professional capacity.</E> Working in a professional capacity means engaging in an activity in a religious vocation or occupation which is defined by INA 101(a)(32) or for which the minimum of a United States baccalaureate degree or a foreign equivalent degree is required for entry into that field of endeavor.</P> <P>(g) <E T="03">Religious occupation.</E> A religious occupation is the habitual employment or engagement in an activity which relates to a traditional religious function. Examples of individuals in religious occupations include, but are not limited to liturgical workers, religious instructors, religious counselors, cantors, catechists, workers in religious hospitals or religious health care facilities, missionaries, religious translators, or religious broadcasters. This group does not include janitors, maintenance workers, clerks, fund raisers, or persons solely involved in the solicitation of donations.</P> <P>(h) <E T="03">Religious vocation.</E> A religious vocation is a calling to religious life evidenced by the demonstration of commitment practiced in the religious denomination, such as the taking of vows. Examples of individuals with a religious vocation include, but are not limited to nuns, monks, and religious brothers and sisters.</P> <P>(i) <E T="03">Alien not entitled to classification under INA 101(a)(15)(R).</E> An alien who has spent 5 years in the United States under INA 101(a)(15)(R) is not entitled to classification and visa issuance under that section unless the alien has resided and been physically present outside the United States, except for brief visits to the United States for business or pleasure, for the immediate prior year.</P> <CITA>[60 FR 42036, Aug. 15, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 41.59</SECTNO> <SUBJECT>Professionals under the North American Free Trade Agreement.</SUBJECT> <P>(a) <E T="03">Requirements for classification as a NAFTA professional.</E> An alien shall be classifiable under the provisions of INA 214(e) if:</P> <P>(1) The consular officer is satisfied that the alien qualifies under the provisions of that section; and</P> <P>(2) In the case of citizens of Mexico, the consular officer has received from DHS an approved petition according classification as a NAFTA Professional to the alien or official confirmation of such petition approval, or DHS confirmation of the alien's authorized stay in such classification; or</P> <P>(3) In the case of citizens of Canada, 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 NAFTA Chapter 16 Annex 1603 Appendix 1603.D.1 and sufficient evidence that the alien possesses the credentials of that profession as listed in said appendix; or</P> <P>(4) The alien is the spouse or child of an alien so classified and is accompanying or following to join the principal alien.</P> <P>(b) <E T="03">Visa validity.</E> The period of validity of a visa issued pursuant to paragraph (a) of this section may not exceed the period indicated in the petition, notification, or confirmation required in paragraph (a)(2) of this section. The approval of a petition by DHS does not establish that the alien is eligible to receive a nonimmigrant visa. The period of validity of a visa issued pursuant to subparagraph (a)(3) of this section may not exceed the period established on a reciprocal basis.</P> <P>(c) <E T="03">Temporary entry.</E> 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 <PRTPAGE P="175"/>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.</P> <P>(d) <E T="03">Labor disputes.</E> 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:</P> <P>(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</P> <P>(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.</P> <CITA>[58 FR 68527, Dec. 28, 1993, as amended at 63 FR 10305, Mar. 3, 1998]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart G—Students and Exchange Visitors</HD> <SECTION> <SECTNO>§ 41.61</SECTNO> <SUBJECT>Students—academic and nonacademic.</SUBJECT> <P>(a) <E T="03">Definitions</E>—(1) <E T="03">Academic,</E> 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.</P> <P>(2) <E T="03">Nonacademic,</E> in INA 101(a)(15)(M), refers to an established vocational or other recognized nonacademic institution (other than a language training program).</P> <P>(b) <E T="03">Classification.</E> (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:</P> <P>(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);</P> <P>(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;</P> <P>(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</P> <P>(iv) The alien intends, and will be able, to depart upon termination of student status.</P> <P>(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.</P> <P>(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 <PRTPAGE P="176"/>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.</P> <P>(c) <E T="03">Posting of bond.</E> 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.</P> <P>(d) <E T="03">Electronic verification and notification.</E> 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.</P> <CITA>[52 FR 42597, Nov. 5, 1987, as amended at 67 FR 58695, Sept. 18, 2002; 68 FR 28131, May 23, 2003]</CITA> </SECTION> <SECTION> <SECTNO>§ 41.62</SECTNO> <SUBJECT>Exchange visitors.</SUBJECT> <P>(a) <E T="03">J-1 classification.</E> 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:</P> <P>(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;</P> <P>(2) Has sufficient funds to cover expenses or has made other arrangements to provide for expenses;</P> <P>(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</P> <P>(4) Meets the requirements of INA 212(j) if coming to participate in a graduate medical education or training program.</P> <P>(5) <E T="03">Electronic verification and notification.</E> 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.</P> <P>(b) <E T="03">J-2 Classification.</E> The spouse or minor child of an alien classified J-1 is classifiable J-2.</P> <P>(c) <E T="03">Applicability of INA 212(e).</E> (1) An alien is subject to the 2-year foreign residence requirement of INA 212(e) if:</P> <P>(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</P> <P>(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 <E T="04">Federal Register,</E> as clearly requiring the services of persons engaged in the field of specialized knowledge or skill in which the alien will engage during the exchange visitor program; or</P> <P>(iii) The alien acquires exchange visitor status in order to receive graduate medical education or training in the United States.<PRTPAGE P="177"/> </P> <P>(2) For the purposes of this paragraph the terms <E T="03">financed directly</E> and <E T="03">financed indirectly</E> are defined as set forth in section § 514.1 of chapter V.</P> <P>(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).</P> <P>(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.</P> <P>(d) <E T="03">Notification to alien concerning 2-year foreign residence requirement.</E> 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.</P> <CITA>[52 FR 42597, Nov. 5, 1987, as amended at 67 FR 58695, Sept. 18, 2002; 68 FR 28132, May 23, 2003; 72 FR 10061, Mar. 7, 2007]</CITA> </SECTION> <SECTION> <SECTNO>§ 41.63</SECTNO> <SUBJECT>Two-year home-country physical presence requirement.</SUBJECT> <P>(a) <E T="03">Statutory basis for rule.</E> Section 212(e) of the Immigration and Nationality Act, as amended, provides in substance as follows:</P> <P>(1) No person admitted under Section 101(a) (15)(J) or acquiring such status after admission:</P> <P>(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;</P> <P>(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 <E T="03">http://exchanges.state.gov/education/jexchanges/participation/skills_list.pdf</E>]; or</P> <P>(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.</P> <P>(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).<PRTPAGE P="178"/> </P> <P>(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.</P> <P>(b) <E T="03">Request for waiver on the basis of exceptional hardship or probable persecution on account of race, religion, or political opinion.</E> (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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(c) <E T="03">Requests for waiver made by an interested United States Government Department of State.</E> (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.<PRTPAGE P="179"/> </P> <P>(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.</P> <P>(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.</P> <P>(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:</P> <P>(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, <E T="03">i.e.</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.</P> <P>(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.</P> <P>(iii) A statement, signed and dated by the foreign medical graduate exchange visitor that shall read as follows: </P> <EXTRACT> <P>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.</P> </EXTRACT> <P>(iv) Evidence that unsuccessful efforts have been made to recruit an American physician for the position to be filled.</P> <P>(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.</P> <P>(d) <E T="03">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.</E> (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 <PRTPAGE P="180"/>or last legal permanent residence. The statement of no objection shall be directed to the Secretary of State through diplomatic channels; <E T="03">i.e.</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.</P> <P>(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.</P> <P>(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.</P> <P>(e) <E T="03">Requests for waiver from a State Department of Public Health, or its equivalent, on the basis of Public Law 103-416.</E> (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.</P> <P>(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.</P> <P>(3) The State Department of Public Health, or equivalent agency, shall include in the waiver application the following:</P> <P>(i) A completed DS-3035. Copies of these forms may be obtained from the Visa Office or online at <E T="03">http://www.travel.state.gov.</E> </P> <P>(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;</P> <P>(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 <PRTPAGE P="181"/>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.</P> <P>(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”).</P> <P>(v) Copies of all forms IAP 66 or DS-2019 issued to the foreign medical graduate seeking the waiver;</P> <P>(vi) A copy of the foreign medical graduate's <E T="03">curriculum vitae</E>;</P> <P>(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,</P> <P>(viii) Because of the numerical limitations on the approval of waivers under Public Law 103-416, <E T="03">i.e.</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.</P> <P>(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.</P> <P>(f) <E T="03">Changed circumstances.</E> 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.</P> <P>(g) <E T="03">The Waiver Review Board.</E> (1) The Waiver Review Board (“Board”) shall consist of the following persons or their designees:</P> <P>(i) The Principal Deputy Assistant Secretary of the Bureau of Consular Affairs;</P> <P>(ii) The Director of Office of Public Affairs for the Bureau of Consular Affairs;</P> <P>(iii) The Legislative Management Officer for Consular Affairs, Bureau of Legislative Affairs;</P> <P>(iv) The Director of the Office of Exchange Coordination and Designation in the Bureau of Educational and Cultural Affairs; and</P> <P>(v) The Director of the Office of Policy and Evaluation in the Bureau of Educational and Cultural Affairs.</P> <P>(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.</P> <P>(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.</P> <P>(4) Cases will be referred to the Board at the discretion of the Chief, Waiver Review Division, of the Visa Office. <PRTPAGE P="182"/>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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <CITA>[58 FR 15196, Mar. 19, 1993; 58 FR 18305, Apr. 8, 1993; 58 FR 48448, Sept. 16, 1993; 60 FR 16787, 16788, April 3, 1995; 60 FR 53125, Oct. 12, 1995; 62 FR 19222, Apr. 21, 1997; 62 FR 28803, May 28, 1997. Redesignated and amended at 64 FR 54539, 54540, Oct. 7, 1999; 67 FR 77160, Dec. 17, 2002; 72 FR 10061, Mar. 7, 2007]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart H—Transit Aliens</HD> <SECTION> <SECTNO>§ 41.71</SECTNO> <SUBJECT>Transit aliens.</SUBJECT> <P>(a) <E T="03">Transit aliens—general.</E> An alien is classifiable as a nonimmigrant transit alien under INA 101(a) (15) (C) if the consular officer is satisfied that the alien:</P> <P>(1) Intends to pass in immediate and continuous transit through the United States;</P> <P>(2) Is in possession of a common carrier ticket or other evidence of transportation arrangements to the alien's destination;</P> <P>(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</P> <P>(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.</P> <P>(b) <E T="03">Certain aliens in transit to United Nations.</E> 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.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart I—Fiance(e)s and Other Nonimmigrants</HD> <SECTION> <SECTNO>§ 41.81</SECTNO> <SUBJECT>Fiancé(e) or spouse of a U.S. citizen and derivative children.</SUBJECT> <P>(a) Fiancé(e). An alien is classifiable as a nonimmigrant fiancé(e) under INA 101(a)(15)(K)(i) if:</P> <P>(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;</P> <P>(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</P> <P>(3) The alien has met all other qualifications in order to receive a nonimmigrant visa, including the requirements of paragraph (d) of this section.<PRTPAGE P="183"/> </P> <P>(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:</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(c) Child. An alien is classifiable under INA 101(a)(15)(K)(iii) if:</P> <P>(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</P> <P>(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.</P> <P>(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).</P> <CITA>[66 FR 19393, Apr. 16, 2001]</CITA> </SECTION> <SECTION> <SECTNO>§ 41.82</SECTNO> <RESERVED>Certain parents and children of section 101(a)(27)(I) special immigrants. [Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 41.83</SECTNO> <SUBJECT>Certain witnesses and informants.</SUBJECT> <P>(a) <E T="03">General.</E> An alien shall be classifiable under the provisions of INA 101(a)(15)(S) if:</P> <P>(1) The consular officer is satisfied that the alien qualifies under the provisions of that section; and</P> <P>(2)(i) The consular officer has received verification from the Department of State, Visa Office, that:</P> <P>(A) in the case of INA 101(a)(15)(S)(i) the DHS has certified that the alien is accorded such classification, or</P> <P>(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;</P> <P>(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.</P> <P>(b) <E T="03">Certification of S visa status.</E> 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.</P> <P>(c) <E T="03">Validity of visa.</E> 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.</P> <CITA>[61 FR 1838, Jan. 24, 1996, as amended at 71 FR 34521, June 15, 2006]</CITA> </SECTION> <SECTION> <SECTNO>§ 41.84</SECTNO> <SUBJECT>Victims of trafficking in persons.</SUBJECT> <P>(a) <E T="03">Eligibility.</E> An alien may be classifiable as a parent, spouse or child under INA 101(a)(15)(T)(ii) if:</P> <P>(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);<PRTPAGE P="184"/> </P> <P>(2) The consular officer is satisfied that the alien is otherwise admissible under the immigration laws of the United States; and</P> <P>(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).</P> <P>(b) <E T="03">Visa validity.</E> 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.</P> <CITA>[68 FR 37964, June 26, 2003]</CITA> </SECTION> <SECTION> <SECTNO>§ 41.86</SECTNO> <SUBJECT>Certain spouses and children of lawful permanent resident aliens.</SUBJECT> <P>(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.</P> <P>(b) Entitlement to classification. A consular officer may classify an alien as a nonimmigrant under INA 101(a)(15)(V) if:</P> <P>(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</P> <P>(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</P> <P>(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:</P> <P>(i) The petition has not been approved; or</P> <P>(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.</P> <P>(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).</P> <P>(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.</P> <CITA>[66 FR 19393, Apr. 16, 2001]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart J—Application for Nonimmigrant Visa</HD> <SECTION> <SECTNO>§ 41.101</SECTNO> <SUBJECT>Place of application.</SUBJECT> <P>(a) <E T="03">Application for regular visa made at jurisdictional consular office of alien's residence or physical presence.</E> (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—</P> <P>(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</P> <P>(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</P> <P>(iii) The alien is subject to INA 222(g) and must apply as set forth in paragraph (b) or (c) of this section.</P> <P>(2) The Deputy Assistant Secretary of State for Visa Services is authorized to designate the geographical area for <PRTPAGE P="185"/>which each consular office possesses jurisdiction to process nonimmigrant visa applications.</P> <P>(b) <E T="03">Place of application for persons subject to INA 222(g).</E> 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.</P> <P>(c) <E T="03">Exceptions based on extraordinary circumstances.</E> (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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(d) <E T="03">Definitions relevant to INA 222(g).</E> (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.</P> <P>(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.</P> <P>(e) <E T="03">Regular visa defined.</E> “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).</P> <P>(f) <E T="03">Q-2 nonimmigrant visas.</E> The American Consulate General at Belfast is designated to accept applications for the Q-2 visa from residents of the geographic area of Northern Ireland. The American Embassy at Dublin is designated to accept applications for Q-2 visas from residents of the geographic area of the counties of Louth, Monaghan, Cavan, Leitrim, Sligo, and Donegal in the Republic of Ireland. Notwithstanding any other provision of this section, an applicant for a Q-2 visa may not apply at any other consular post. Consular officers at the Consulate General at Belfast and at the Embassy at Dublin have discretion to accept applications for Q-2 visas from aliens who are resident in a qualifying geographic area outside of their respective consular districts, but who are physically present in their consular district.</P> <CITA>[52 FR 42597, Nov. 5, 1987; 53 FR 9112, Mar. 21, 1988, as amended at 61 FR 1522, Jan. 22, 1996; 61 FR 53058, Oct. 10, 1996; 61 FR 56439, Nov. 1, 1996; 63 FR 671, Jan. 7, 1998; 63 FR 36366, July 6, 1998; 65 FR 14771, Mar. 17, 2000; 66 FR 38542, July 25, 2001; 67 FR 66046, Oct. 30, 2002]</CITA> </SECTION> <SECTION> <PRTPAGE P="186"/> <SECTNO>§ 41.102</SECTNO> <SUBJECT>Personal appearance of applicant.</SUBJECT> <P>(a) <E T="03">Personal</E> appearance before a consular officer is required except as otherwise provided in this section. Except when the requirement of personal appearance has been waived pursuant to paragraph (b) or (c) of this section, each applicant for a nonimmigrant visa 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:</P> <P>(1) The proper nonimmigrant classification, if any, of the alien; and</P> <P>(2) The alien's eligibility to receive a visa.</P> <P>(b) <E T="03">Waivers of personal appearance by consular officers.</E> Except as provided in paragraph (d) 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 in the case of any alien who the consular officer concludes presents no national security concerns requiring an interview and who:</P> <P>(1) Is a child under 14 years of age;</P> <P>(2) Is a person over 79 years of age;</P> <P>(3) 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, or NATO-6 and who is seeking a visa in such classification;</P> <P>(4) Is an applicant for a diplomatic or official visa as described in §§ 41.26 or 41.27 of this chapter, respectively;</P> <P>(5) Is an applicant who within 12 months of the expiration of the applicant's previously issued visa is seeking re-issuance of a nonimmigrant biometric visa in the same classification at the consular post of the applicant's usual residence, and for whom the consular officer has no indication of visa ineligibility or of noncompliance with U.S. immigration laws and regulations; or</P> <P>(6) Is an alien for whom a waiver of personal appearance is warranted in the national interest or because of unusual circumstances.</P> <P>(c) <E T="03">Waivers of personal appearance by the Deputy Assistant Secretary of State.</E> Except as provided in paragraph (d) of this section, the Deputy Assistant Secretary for Visa Services may waive the personal appearance before a consular officer of an individual applicant or a class of applicants if the Deputy Assistant Secretary finds that the waiver of personal appearance is warranted in the national interest or because of unusual circumstances and that national security concerns do not require an interview.</P> <P>(d) <E T="03">Cases in which personal appearance may not be waived.</E> A consular officer or the Deputy Assistant Secretary of State may not waive personal appearance for:</P> <P>(1) Any NIV applicant who is not a national or resident of the country in which he or she is applying, unless the applicant is eligible for a waiver of the interview under paragraphs (b)(3) or (b)(4) of this section.</P> <P>(2) Any NIV applicant who was previously refused a visa, is listed in CLASS, or who otherwise requires a Security Advisory Opinion, unless:</P> <P>(i) The visa was refused temporarily and the refusal was subsequently overcome;</P> <P>(ii) The alien was found inadmissible, but the inadmissibility was waived; or</P> <P>(iii) The applicant is eligible for a waiver of the interview under paragraphs (b)(3) or (b)(4) of this section.</P> <P>(3) Any NIV applicant who is from a country designated by the Secretary of State as a state sponsor of terrorism, regardless of age, or in a group designated by the Secretary of State under section 222(h)(2)(F) of the Immigration and Nationality Act, unless the applicant is eligible for a waiver under paragraphs (b)(3) or (b)(4) of this section.</P> <P>(e) <E T="03">Unusual circumstances.</E> As used in this section, unusual circumstances shall include, but not be limited to, an emergency or unusual hardship.</P> <CITA>[68 FR 40128, July 7, 2003, as amended at 71 FR 75663, Dec. 18, 2006]</CITA> </SECTION> <SECTION> <SECTNO>§ 41.103</SECTNO> <SUBJECT>Filing an application.</SUBJECT> <P>(a) <E T="03">Filing an application</E>—(1) <E T="03">Filing of application required.</E> Every alien seeking a nonimmigrant visa must make an electronic application on Form DS-160 <PRTPAGE P="187"/>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.</P> <P>(2) <E T="03">Filing of an electronic application (Form DS-160) or Form DS-156 by alien under 16 or physically incapable.</E> 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.</P> <P>(3) <E T="03">Waiver of filing of application when personal appearance is waived.</E> 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.</P> <P>(b) <E T="03">Application</E>—(1) <E T="03">Preparation of Electronic Nonimmigrant Visa Application (Form DS-160) or, alternatively, Form DS-156.</E> The consular officer shall ensure that the application is fully and properly completed in accordance with the applicable regulations and instructions.</P> <P>(2) <E T="03">Additional requirements and information as part of application.</E> 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).</P> <P>(3) <E T="03">Signature.</E> 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.</P> <P>(4) <E T="03">Registration.</E> The Form DS-160 or the Form DS-156, when duly executed, constitutes the alien's registration for the purposes of INA 221(b).</P> <CITA>[73 FR 23068, Apr. 29, 2008]</CITA> </SECTION> <SECTION> <SECTNO>§ 41.104</SECTNO> <SUBJECT>Passport requirements.</SUBJECT> <P>(a) <E T="03">Passports defined.</E> “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).</P> <P>(b) <E T="03">Passport requirement.</E> 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).</P> <P>(c) <E T="03">A single passport including more than one person.</E> 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.</P> <P>(d) <E T="03">Applicants for diplomatic visas.</E> 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 <PRTPAGE P="188"/>unless the case falls within the provisions of § 41.21(b).</P> <CITA>[52 FR 42597, Nov. 5, 1987, as amended at 56 FR 30428, July 2, 1991; 61 FR 1522, Jan. 22, 1996; 61 FR 53058, Oct. 10, 1996; 66 FR 38543, July 25, 2001; 67 FR 66046, Oct. 30, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 41.105</SECTNO> <SUBJECT>Supporting documents and fingerprinting.</SUBJECT> <P>(a) <E T="03">Supporting documents</E>—(1) <E T="03">Authority to require documents.</E> 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.</P> <P>(2) <E T="03">Unobtainable documents.</E> 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.</P> <P>(3) <E T="03">Photographs required.</E> 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<FR>1/2</FR> by 1<FR>1/2</FR> inches in size, unmounted, and showing a full, front-face view of the applicant against a light background. At the discretion of the consular officer, head coverings may be permitted provided they do not interfere with the full, front-face view of the applicant. The applicant must sign (full name) on the reverse side of the photographs. The consular officer may use a previously submitted photograph, if he is satisfied that it bears a reasonable likeness to the applicant.</P> <P>(4) <E T="03">Police certificates.</E> 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.</P> <P>(b) <E T="03">Fingerprinting.</E> Every applicant for a nonimmigrant visa must furnish fingerprints, as required by the consular officer.</P> <CITA>[52 FR 42597, Nov. 5, 1987; 53 FR 9112, 9172, Mar. 21, 1988, as amended at 61 FR 1522, Jan. 22, 1996; 61 FR 53058, Oct. 10, 1996; 64 FR 13510, Mar. 19, 1999; 67 FR 8478, Feb. 25, 2002; 72 FR 74175, Dec. 31, 2007; 73 FR 49092, Aug. 20, 2008]</CITA> </SECTION> <SECTION> <SECTNO>§ 41.106</SECTNO> <SUBJECT>Processing.</SUBJECT> <P>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.</P> <CITA>[73 FR 23069, Apr. 29, 2008]</CITA> </SECTION> <SECTION> <SECTNO>§ 41.107</SECTNO> <SUBJECT>Visa fees.</SUBJECT> <P>(a) <E T="03">Fees based on reciprocity.</E> 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.</P> <P>(b) <E T="03">Fees when more than one alien included in visa.</E> 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.</P> <P>(c) <E T="03">Certain aliens exempted from fees.</E> (1) Upon a basis of reciprocity, or as provided in section 13(a) of the Headquarters Agreement with the United <PRTPAGE P="189"/>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.</P> <P>(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:</P> <P>(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</P> <P>(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</P> <P>(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</P> <P>(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.</P> <P>(3) Foreign national employees of the U. S. Government who are travelling to the United States on official business in connection with that employment.</P> <P>(d) <E T="03">Refund of fees.</E> 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.</P> <P>(e)(1) <E T="03">Visa processing surcharge.</E> 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. Goverment for which the alien was not responsible and over which the alien had no control, the alien's application is not processed.</P> <P>(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:</P> <P>(i) The alien is a Mexican citizen under the age of 15;</P> <P>(ii) The alien is applying in Mexico; and</P> <P>(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.</P> <CITA>[52 FR 42597, Nov. 5, 1987, as amended at 59 FR 25325, May 16, 1994; 63 FR 24108, May 1, 1998; 63 FR 52970, Oct. 2, 1998; 65 FR 52307, Aug. 29, 2000; 66 FR 17511, Apr. 2, 2001; 66 FR 38543, July 25, 2001; 67 FR 38893, June 6, 2002; 67 FR 66046, Oct. 30, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 41.108</SECTNO> <SUBJECT>Medical examination.</SUBJECT> <P>(a) <E T="03">Requirements for medical examination.</E> An applicant for a nonimmigrant visa shall be required to take a medical examination if:</P> <P>(1) The alien is an applicant for a K nonimmigrant visa as a fiance(e) of a <PRTPAGE P="190"/>U.S. citizen or as the child of such an applicant; or,</P> <P>(2) The alien is seeking admission for medical treatment and the consular officer considers a medical examination advisable; or,</P> <P>(3) The consular officer has reason to believe that a medical examination might disclose that the alien is medically ineligible to receive a visa.</P> <P>(b) <E T="03">Examination by panel physician.</E> 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.</P> <P>(c) <E T="03">Panel physician facility requirements.</E> 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.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart K—Issuance of Nonimmigrant Visa</HD> <SECTION> <SECTNO>§ 41.111</SECTNO> <SUBJECT>Authority to issue visa.</SUBJECT> <P>(a) <E T="03">Issuance outside the United States.</E> Any consular officer is authorized to issue regular and official visas. Diplomatic visas may be issued only by:</P> <P>(1) A consular officer attached to a U.S. diplomatic mission, if authorized to do so by the Chief of Mission; or</P> <P>(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.</P> <P>(b) <E T="03">Issuance in the United States in certain cases.</E> 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, to:</P> <P>(1) Qualified aliens 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:</P> <P>(i) They have been lawfully admitted in that status or have, after admission, had their classification changed to that status; and</P> <P>(ii) Their period of authorized stay in the United States in that status has not expired; and</P> <P>(2) Other qualified aliens who:</P> <P>(i) Are currently maintaining status in the E, H, I, L, O, or P nonimmigrant category;</P> <P>(ii) Intend to reenter the United States in that status after a temporary absence abroad; and</P> <P>(iii) Who also present evidence that:</P> <P>(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</P> <P>(B) Their period of authorized admission in that status has not expired.</P> <CITA>[52 FR 42597, Nov. 5, 1987, as amended at 66 FR 12738, Feb. 28, 2001]</CITA> </SECTION> <SECTION> <SECTNO>§ 41.112</SECTNO> <SUBJECT>Validity of visa.</SUBJECT> <P>(a) <E T="03">Significance of period of validity of visa.</E> 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.</P> <P>(b) <E T="03">Validity of visa and number of applications for admission.</E> (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.<PRTPAGE P="191"/> </P> <P>(2) Notwithstanding paragraph (b)(1) of this section, United States nonimmigrant visas shall have a maximum validity period of 10 years.</P> <P>(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.</P> <P>(c) <E T="03">Limitation on validity.</E> If warranted in an individual case, a consular officer may issue a nonimmigrant visa for:</P> <P>(1) A period of validity that is less than that prescribed on a basis of reciprocity,</P> <P>(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,</P> <P>(3) Application for admission at a specified port or at specified ports of entry, or</P> <P>(4) Use on and after a given date subsequent to the date of issuance.</P> <P>(d) <E T="03">Automatic extension of validity at ports of entry.</E> (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:</P> <P>(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</P> <P>(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.</P> <P>(2) The provisions in paragraph (d)(1) of this section are applicable only in the case of a nonimmigrant alien who:</P> <P>(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, or, in the case of a qualified F or J student or exchange visitor or the accompanying spouse or child of such an alien, is in possession of a current Form I-20, Certificate of Eligibility for Nonimmigrant Student Status, or Form IAP-66, Certificate of Eligibility for Exchange Visitor Status, issued by the school the student has been authorized to attend by DHS, or by the sponsor of the exchange program in which the alien has been authorized to participate by DHS, and endorsed by the issuing school official or program sponsor to indicate the period of initial admission or extension of stay authorized by DHS;</P> <P>(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;</P> <P>(iii) Has maintained and intends to resume nonimmigrant status;</P> <P>(iv) Is applying for readmission within the authorized period of initial admission or extension of stay;</P> <P>(v) Is in possession of a valid passport;</P> <P>(vi) Does not require authorization for admission under INA 212(d)(3); and</P> <P>(vii) Has not applied for a new visa while abroad.</P> <P>(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.</P> <CITA>[52 FR 42597, Nov. 5, 1987; 53 FR 9112, 9172, Mar. 21, 1988, as amended at 55 FR 36028, Oct. 31, 1990; 62 FR 24332, May 5, 1997; 66 FR 38543, July 25, 2001; 67 FR 10323, Mar. 7, 2002; 67 FR 66046, Oct. 30, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 41.113</SECTNO> <SUBJECT>Procedures in issuing visas.</SUBJECT> <P>(a) <E T="03">Visa evidenced by stamp placed in passport.</E> Except as provided in paragraphs (b) of this section, a nonimmigrant visa shall be evidenced by a visa stamp placed in the alien's passport. The appropriate symbol as prescribed in 41.12 , showing the classification of the alien, shall be entered on the visa.</P> <P>(b) <E T="03">Cases in which visa not placed in passport.</E> In the following cases the visa shall be placed on the prescribed Form <PRTPAGE P="192"/>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.</P> <P>(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;</P> <P>(2) The alien's passport does not provide sufficient space for the visa;</P> <P>(3) The passport requirement has been waived; or</P> <P>(4) In other cases as authorized by the Department.</P> <P>(c) <E T="03">Visa stamp.</E> A machine-readable nonimmigrant visa foil, or other indicia as directed by the Department, shall constitute a visa “stamp,” and shall be in a format designated by the Department, and contain, at a minimum, the following data:</P> <P>(1) Full name of the applicant;</P> <P>(2) Visa type/class;</P> <P>(3) Location of the visa issuing office;</P> <P>(4) Passport number;</P> <P>(5) Sex;</P> <P>(6) Date of birth;</P> <P>(7) Nationality;</P> <P>(8) Number of applications for admission or the letter “M” for multiple entries;</P> <P>(9) Date of issuance;</P> <P>(10) Date of expiration;</P> <P>(11) Visa control number.</P> <P>(d) <E T="03">Insertion of name; petition and derivative status notation.</E> (1) The surname and given name of the visa recipient shall be shown on the visa in the space provided.</P> <P>(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.</P> <P>(3) In the case of an alien who derives status from a principal alien, the name and position of the principal alien shall be reflected in the annotation field of the visa.</P> <P>(e) <E T="03">Period of validity.</E> 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.</P> <P>(f) <E T="03">Restriction to specified port of entry.</E> 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 ports 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 ports are listed.</P> <P>(g) <E T="03">Delivery of visa.</E> In issuing a nonimmigrant visa, the consular officer should deliver the visaed passport, or the prescribed Form DS-232, which bears the visa, to the alien or to the alien's authorized representative. Any evidence furnished by the alien in accordance with 41.103(b) should be retained in the consular files, along with Form DS-156, if received.</P> <P>(h) <E T="03">Disposition of supporting documents.</E> 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 files or scanned into the consular system.</P> <P>(i) 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. Visa issuances must be reviewed without delay; that is, on the day of issuance or as soon as is administratively possible. If the reviewing officer disagrees with the decision and he or she has a consular commission and title, the reviewing officer may assume responsibility and readjudicate the case. If the reviewing officer does not have a consular commission and title, he or she <PRTPAGE P="193"/>must consult with the adjudicating officer, or with the Visa Office, to resolve any disagreement.</P> <CITA>[52 FR 42597, Nov. 5, 1987, as amended at 56 FR 30428, July 2, 1991; 61 FR 1523, Jan. 22, 1996; 61 FR 1836, Jan. 24, 1996; 61 FR 53058, Oct. 10, 1996; 62 FR 24334, May 5, 1997; 66 FR 38543, July 25, 2001; 67 FR 66046, Oct. 30, 2002; 71 FR 34522, June 15, 2006; 71 FR 50338, Aug. 25, 2006; 73 FR 23069, Apr. 29, 2008]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart L—Refusals and Revocations</HD> <SECTION> <SECTNO>§ 41.121</SECTNO> <SUBJECT>Refusal of individual visas.</SUBJECT> <P>(a) <E T="03">Grounds for refusal.</E> 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), (f) or (l) (as added by Section 625 of Pub. L. 104-208), INA 221(g), or 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 INA and the implementing regulations, the consular officer must either issue or refuse the visa.</P> <P>(b) <E T="03">Refusal procedure.</E> (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.</P> <P>(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.</P> <P>(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.</P> <P>(d) <E T="03">Review of refusal by Department.</E> 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 <PRTPAGE P="194"/>law, as distinguished from an application of the law to the facts, shall be binding upon consular officers.</P> <CITA>[52 FR 42597, Nov. 5, 1987, as amended at 56 FR 30428, July 2, 1991; 63 FR 671, Jan. 7, 1998; 66 FR 10364, Feb. 15, 2001; 71 FR 50339, Aug. 25, 2006]</CITA> </SECTION> <SECTION> <SECTNO>§ 41.122</SECTNO> <SUBJECT>Revocation of visas.</SUBJECT> <P>(a) <E T="03">Grounds for revocation by consular officers.</E> A consular officer is authorized to revoke a nonimmigrant visa issued to an alien if:</P> <P>(1) The officer finds that the alien was not, or has ceased to be, entitled to the nonimmigrant classification under INA 101(a)(15) specified in the visa or that the alien was at the time the visa was issued, or has since become, ineligible under INA 212(a) to receive a visa, or was issued a visa in contravention of INA 222(g)</P> <P>(2) The visa has been physically removed from the passport in which it was issued prior to the alien's embarkation upon a continuous voyage to the United States; or</P> <P>(3) For any of the reasons specified in paragraph (h) of this section if the visa has not been revoked by an immigration officer as authorized in that paragraph.</P> <P>(4) The visa has been issued in a combined Mexican or Canadian B-1/B-2 visa and border crossing identification card and the 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.</P> <P>(b) <E T="03">Notice of proposed revocation.</E> When consideration is being given to the revocation of a nonimmigrant visa under paragraph (a)(1) or (2) of this section, the consular officer considering that action shall, if practicable, notify the alien to whom the visa was issued of intention to revoke the visa. The alien shall also be given an opportunity to show why the visa should not be revoked and requested to present the travel document in which the visa was originally issued.</P> <P>(c) <E T="03">Procedure for physically cancelling visas.</E> A nonimmigrant visa which is revoked shall be canceled by writing or stamping the word “REVOKED” plainly across the face of the visa. The cancellation shall be dated and signed by the officer taking the action. The failure of the alien to present the visa for cancellation does not affect the validity of action taken to revoke it.</P> <P>(d) <E T="03">Notice to carriers.</E> Notice of revocation shall be given to the master, aircraft captain, agent, owner, charterer, or consignee of the carrier or transportation line on which it is believed the alien intends to travel to the United States, unless the visa has been physically canceled as provided in paragraph (c) of this section.</P> <P>(e) <E T="03">Notice to Department.</E> When a visa is revoked under paragraph (a)(1) or (2) of this section, the consular officer shall promptly submit notice of the revocation, including a full report on the facts in the case, to the Department for transmission to DHS. A report is not required if the visa is physically canceled prior to the alien's departure for the United States except in cases involving A, G, C-2, C-3, NATO, diplomatic or official visas.</P> <P>(f) <E T="03">Record of action.</E> Upon revocation of a nonimmigrant visa under paragraph (a)(1) or (2) of this section, the consular officer shall complete for the post files a Certificate of Revocation by Consular Officer which includes a statement of the reasons for the revocation. If the revocation is effected at other than the issuing office, a copy of the Certificate of Revocation shall be sent to that office.</P> <P>(g) <E T="03">Reconsideration of revocation.</E> (1) The consular office shall consider any evidence submitted by the alien or the alien's attorney or representative in connection with a request that the revocation be reconsidered. If the officer finds that the evidence is sufficient to overcome the basis for the revocation, a new visa shall be issued. A memorandum regarding the action taken and the reasons therefor shall be placed in the consular files and appropriate notification shall be made promptly to the carriers concerned, the Department, and the issuing office if notice of revocation has been given in accordance with paragraphs (d), (e), and (f) of this section.</P> <P>(2) In view of the provisions of § 41.107(d) providing for the refund of fees when a visa has not been used as a <PRTPAGE P="195"/>result of action by the U.S. Government, a fee shall not be charged in connection with a reinstated visa.</P> <P>(h) <E T="03">Revocation of visa by immigration officer.</E> An immigration officer is authorized to revoke a valid visa by physically canceling it in accordance with the procedure prescribed in paragraph (c) of this section if:</P> <P>(1) The alien obtains an immigrant visa or an adjustment of status to that of permanent resident;</P> <P>(2) The alien is ordered excluded from the United States pursuant to INA 235(c) or 236;</P> <P>(3) The alien is notified pursuant to INA 235(b) 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;</P> <P>(4) A final order of deportation or a final order granting voluntary departure with an alternate order of deportation is entered against the alien pursuant to DHS regulations;</P> <P>(5) The alien has been permitted by DHS to depart voluntarily from the United States pursuant to DHS regulations;</P> <P>(6) A waiver of ineligibility pursuant to INA 212(d)(3)(A) on the basis of which the visa was issued to the alien is revoked by DHS;</P> <P>(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 it was issued; or</P> <P>(8) The visa has been physically removed from the passport in which it was issued.</P> <P>(9) The visa has been issued in a combined Mexican or Canadian B-1/B-2 visa and border crossing identification card and the 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.</P> <CITA>[52 FR 42597, Nov. 5, 1987, as amended at 63 FR 16895, Apr. 7, 1998; 66 FR 10364, Feb. 15, 2001; 66 FR 38544, July 25, 2001; 67 FR 66046, Oct. 30, 2002]</CITA> </SECTION> </SUBPART> <PART> <EAR>Pt. 42</EAR> <HD SOURCE="HED">PART 42—VISAS: DOCUMENTATION OF IMMIGRANTS UNDER THE IMMIGRATION AND NATIONALITY ACT, AS AMENDED</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—Visa and Passport Not Required for Certain Immigrants</HD> <SECHD>Sec.</SECHD> <SECTNO>42.1</SECTNO> <SUBJECT>Aliens not required to obtain immigrant visas.</SUBJECT> <SECTNO>42.2</SECTNO> <SUBJECT>Aliens not required to present passports.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Classification and Foreign State Chargeability</HD> <SECTNO>42.11</SECTNO> <SUBJECT>Classification symbols.</SUBJECT> <SECTNO>42.12</SECTNO> <SUBJECT>Rules of chargeability.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Immigrants Not Subject to Numerical Limitations of INA 201 and 202</HD> <SECTNO>42.21</SECTNO> <SUBJECT>Immediate relatives.</SUBJECT> <SECTNO>42.22</SECTNO> <SUBJECT>Returning resident aliens.</SUBJECT> <SECTNO>42.23</SECTNO> <SUBJECT>Certain former U.S. citizens.</SUBJECT> <SECTNO>42.24</SECTNO> <SUBJECT>Adoption under the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption and the Intercountry Adoption Act of 2000.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Immigrants Subject to Numerical Limitations</HD> <SECTNO>42.31</SECTNO> <SUBJECT>Family-sponsored immigrants.</SUBJECT> <SECTNO>42.32</SECTNO> <SUBJECT>Employment-based preference immigrants.</SUBJECT> <SECTNO>42.33</SECTNO> <SUBJECT>Diversity immigrants.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart E—Petitions</HD> <SECTNO>42.41</SECTNO> <SUBJECT>Effect of approved petition.</SUBJECT> <SECTNO>42.42</SECTNO> <SUBJECT>Petitions for immediate relative or preference status.</SUBJECT> <SECTNO>42.43</SECTNO> <SUBJECT>Suspension or termination of action in petition cases.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart F—Numerical Controls and Priority Dates</HD> <SECTNO>42.51</SECTNO> <SUBJECT>Department control of numerical limitations.</SUBJECT> <SECTNO>42.52</SECTNO> <SUBJECT>Post records of visa applications.</SUBJECT> <SECTNO>42.53</SECTNO> <SUBJECT>Priority date of individual applicants.</SUBJECT> <SECTNO>42.54</SECTNO> <SUBJECT>Order of consideration.</SUBJECT> <SECTNO>42.55</SECTNO> <SUBJECT>Reports on numbers and priority dates of applications on record.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart G—Application for Immigrant Visas</HD> <SECTNO>42.61</SECTNO> <SUBJECT>Place of application.</SUBJECT> <SECTNO>42.62</SECTNO> <SUBJECT>Personal appearance and interview of applicant.<PRTPAGE P="196"/> </SUBJECT> <SECTNO>42.63</SECTNO> <SUBJECT>Application forms and other documentation.</SUBJECT> <SECTNO>42.64</SECTNO> <SUBJECT>Passport requirements.</SUBJECT> <SECTNO>42.65</SECTNO> <SUBJECT>Supporting documents.</SUBJECT> <SECTNO>42.66</SECTNO> <SUBJECT>Medical examination.</SUBJECT> <SECTNO>42.67</SECTNO> <SUBJECT>Execution of application, registration, and fingerprinting.</SUBJECT> <SECTNO>42.68</SECTNO> <SUBJECT>Informal evaluation of family members if principal applicant precedes them.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart H—Issuance of Immigrant Visas</HD> <SECTNO>42.71</SECTNO> <SUBJECT>Authority to issue visas; visa fees.</SUBJECT> <SECTNO>42.72</SECTNO> <SUBJECT>Validity of visas.</SUBJECT> <SECTNO>42.73</SECTNO> <SUBJECT>Procedure in issuing visas.</SUBJECT> <SECTNO>42.74</SECTNO> <SUBJECT>Issuance of new or replacement visas.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart I—Refusal, Revocation, and Termination of Registration</HD> <SECTNO>42.81</SECTNO> <SUBJECT>Procedure in refusing individual visas.</SUBJECT> <SECTNO>42.82</SECTNO> <SUBJECT>Revocation of visas.</SUBJECT> <SECTNO>42.83</SECTNO> <SUBJECT>Termination of registration.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>8 U.S.C. 1104 and 1182; Pub. L. 105-277; Pub. L. 108-449; 112 Stat. 2681-795 through 2681-801; The Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (done at the Hague, May 29, 1993), S. Treaty Doc. 105-51 (1998), 1870 U.N.T.S. 167 (Reg. No. 31922 (1993)); The Intercountry Adoption Act of 2000, 42 U.S.C. 14901-14954, Pub. L. 106-279.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>52 FR 42613, Nov. 5, 1987, unless otherwise noted.</P> </SOURCE> <EDNOTE> <HD SOURCE="HED">Editorial Note:</HD> <P>Nomenclature changes to part 42 appear at 71 FR 34522, June 15, 2006.</P> </EDNOTE> <SUBPART> <HD SOURCE="HED">Subpart A—Visa and Passport Not Required for Certain Immigrants</HD> <SECTION> <SECTNO>§ 42.1</SECTNO> <SUBJECT>Aliens not required to obtain immigrant visas.</SUBJECT> <P>An immigrant within any of the following categories is not required to obtain an immigrant visa:</P> <P>(a) <E T="03">Aliens lawfully admitted for permanent residence.</E> 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.</P> <P>(b) <E T="03">Alien members of U.S. Armed Forces.</E> 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.</P> <P>(c) <E T="03">Aliens entering from Guam, Puerto Rico, or the Virgin Islands.</E> 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.</P> <P>(d) <E T="03">Child born after issuance of visa to accompanying parent.</E> 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.</P> <P>(e) <E T="03">Child born of a national or lawful permanent resident mother during her temporary visit abroad.</E> 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.</P> <P>(f) <E T="03">American Indians born in Canada.</E> An American Indian born in Canada and having at least 50 per centum of blood of the American Indian race.</P> </SECTION> <SECTION> <SECTNO>§ 42.2</SECTNO> <SUBJECT>Aliens not required to present passports.</SUBJECT> <P>An immigrant within any of the following categories is not required to present a passport in applying for an immigrant visa:</P> <P>(a) <E T="03">Certain relatives of U.S. citizens.</E> 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.</P> <P>(b) <E T="03">Returning aliens previously lawfully admitted for permanent residence.</E> 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.</P> <P>(c) <E T="03">Certain relatives of aliens lawfully admitted for permanent residence.</E> An alien who is the spouse, unmarried son <PRTPAGE P="197"/>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.</P> <P>(d) <E T="03">Stateless persons.</E> An alien who is a stateless person, and accompanying spouse and unmarried son or daughter.</P> <P>(e) <E T="03">Nationals of Communist-controlled countries.</E> 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.</P> <P>(f) <E T="03">Alien members of U.S. Armed Forces.</E> An alien who is a member of the U.S. Armed Forces.</P> <P>(g) <E T="03">Beneficiaries of individual waivers.</E> (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.</P> <P>(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.</P> <CITA>[52 FR 42613, Nov. 5, 1987, as amended at 56 FR 49680, Oct. 1, 1991]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Classification and Foreign State Chargeability</HD> <SECTION> <SECTNO>§ 42.11</SECTNO> <SUBJECT>Classification symbols.</SUBJECT> <P>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.</P> <GPOTABLE CDEF="xs35,r100,r70" COLS="3" OPTS="L2"> <TTITLE>Immigrants</TTITLE> <BOXHD> <CHED H="1">Symbol</CHED> <CHED H="1">Class</CHED> <CHED H="1">Section of law</CHED> </BOXHD> <ROW EXPSTB="02" RUL="s"> <ENT I="21"> <E T="02">Immediate Relatives</E> </ENT> </ROW> <ROW EXPSTB="00"> <ENT I="01">IR1</ENT> <ENT>Spouse of U.S. Citizen</ENT> <ENT>201(b).</ENT> </ROW> <ROW> <ENT I="01">IR2</ENT> <ENT>Child of U.S. Citizen</ENT> <ENT>201(b).</ENT> </ROW> <ROW> <ENT I="01">IR3</ENT> <ENT>Orphan Adopted Abroad by U.S. Citizen</ENT> <ENT>201(b) & 101(b)(1)(F).</ENT> </ROW> <ROW> <ENT I="01">IH3</ENT> <ENT>Child from Hague Convention Country Adopted Abroad by U.S. Citizen</ENT> <ENT>201(b) & 101(b)(1)(G).</ENT> </ROW> <ROW> <ENT I="01">IR4</ENT> <ENT>Orphan to be Adopted in U.S. by U.S. Citizen</ENT> <ENT>201(b) & 101(b)(1)(F).</ENT> </ROW> <ROW> <ENT I="01">IH4</ENT> <ENT>Child from Hague Convention Country to be Adopted in U.S. by U.S. Citizen</ENT> <ENT>201(b) & 101(b)(1)(G).</ENT> </ROW> <ROW> <ENT I="01">IR5</ENT> <ENT>Parent of U.S. Citizen at Least 21 Years of Age</ENT> <ENT>201(b).</ENT> </ROW> <ROW> <ENT I="01">CR1</ENT> <ENT>Spouse of U.S. Citizen (Conditional Status)</ENT> <ENT>201(b) & 216.</ENT> </ROW> <ROW> <ENT I="01">CR2</ENT> <ENT>Child of U.S. Citizen (Conditional Status)</ENT> <ENT>201(b) & 216.</ENT> </ROW> <ROW> <ENT I="01">IW1</ENT> <ENT>Certain Spouses of Deceased U.S. Citizens</ENT> <ENT>201(b).</ENT> </ROW> <ROW> <ENT I="01">IW2</ENT> <ENT>Child of IW1</ENT> <ENT>201(b).</ENT> </ROW> <ROW> <ENT I="01">IB1</ENT> <ENT>Self-petition Spouse of U.S. Citizen</ENT> <ENT>204(a)(1)(A)(iii).</ENT> </ROW> <ROW> <ENT I="01">IB2</ENT> <ENT>Self-petition Child of U.S. Citizen</ENT> <ENT>204(a)(1)(A)(iv).</ENT> </ROW> <ROW> <ENT I="01">IB3</ENT> <ENT>Child of IB1</ENT> <ENT>204(a)(1)(A)(iii).</ENT> </ROW> <ROW RUL="s"> <ENT I="01">VI5</ENT> <ENT>Parent of U.S. Citizen Who Acquired Permanent Resident Status Under the Virgin Islands Nonimmigrant Alien Adjustment Act</ENT> <ENT>201(b) & sec. 2 of the Virgin Islands Nonimmigrant Alien Adjustment Act, (Pub. L. 97-271).</ENT> </ROW> <ROW EXPSTB="02" RUL="s"> <ENT I="21"> <E T="02">Vietnam Amerasian Immigrants</E> </ENT> </ROW> <ROW EXPSTB="00"> <ENT I="01">AM1</ENT> <ENT>Vietnam Amerasian Principal</ENT> <ENT>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.</ENT> </ROW> <ROW> <ENT I="01">AM2</ENT> <ENT>Spouse or Child of AM1</ENT> <ENT>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 Pub. L. 100-102) as amended.</ENT> </ROW> <ROW RUL="s"> <PRTPAGE P="198"/> <ENT I="01">AM3</ENT> <ENT>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)</ENT> <ENT>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 Pub. L. 100-102) as amended.</ENT> </ROW> <ROW EXPSTB="02" RUL="s"> <ENT I="21"> <E T="02">Special Immigrants</E> </ENT> </ROW> <ROW EXPSTB="00"> <ENT I="01">SB1</ENT> <ENT>Returning Resident</ENT> <ENT>101(a)(27)(A).</ENT> </ROW> <ROW> <ENT I="01">SC1</ENT> <ENT>Person Who Lost U.S. Citizenship by Marriage</ENT> <ENT>101(a)(27)(B) & 324(a).</ENT> </ROW> <ROW> <ENT I="01">SC2</ENT> <ENT>Person Who Lost U.S. Citizenship by Serving in Foreign Armed Forces</ENT> <ENT>101(a)(27)(B) & 327.</ENT> </ROW> <ROW> <ENT I="01">SI1</ENT> <ENT>Certain Aliens Employed by the U.S. Government in Iraq or Afghanistan as Translators or Interpreters</ENT> <ENT>Section 1059 of Pub. L. 109-163 as amended by Pub. L. 110-36.</ENT> </ROW> <ROW> <ENT I="01">SI2</ENT> <ENT>Spouse of SI1</ENT> <ENT>Section 1059 of Pub. L. 109-163 as amended by Pub. L. 110-36.</ENT> </ROW> <ROW> <ENT I="01">SI3</ENT> <ENT>Child of SI1</ENT> <ENT>Section 1059 of Pub. L. 109-163 as amended by Pub. L. 110-36.</ENT> </ROW> <ROW> <ENT I="01">SM1</ENT> <ENT>Alien Recruited Outside the United States Who Has Served or is Enlisted to Serve in the U.S. Armed Forces for 12 Years</ENT> <ENT>101(a)(27)(K).</ENT> </ROW> <ROW> <ENT I="01">SM2</ENT> <ENT>Spouse of SM1</ENT> <ENT>101(a)(27)(K).</ENT> </ROW> <ROW> <ENT I="01">SM3</ENT> <ENT>Child of SM1</ENT> <ENT>101(a)(27)(K).</ENT> </ROW> <ROW> <ENT I="01">SQ1</ENT> <ENT>Certain Iraqis Employed by or on Behalf of the U.S. Government</ENT> <ENT>Section 1244 of Public Law 110-181.</ENT> </ROW> <ROW> <ENT I="01">SQ2</ENT> <ENT>Spouse of SQ1</ENT> <ENT>Section 1244 of Public Law 110-181.</ENT> </ROW> <ROW RUL="s"> <ENT I="01">SQ3</ENT> <ENT>Child of SQ1</ENT> <ENT>Section 1244 of Public Law 110-181.</ENT> </ROW> <ROW EXPSTB="02"> <ENT I="21"> <E T="02">Family-Sponsored Preferences</E> </ENT> </ROW> <ROW RUL="s"> <ENT I="21"> <E T="02">Family 1st Preference</E> </ENT> </ROW> <ROW EXPSTB="00"> <ENT I="01">F11</ENT> <ENT>Unmarried Son or Daughter of U.S. Citizen</ENT> <ENT>203(a)(1).</ENT> </ROW> <ROW> <ENT I="01">F12</ENT> <ENT>Child of F11</ENT> <ENT>203(d) & 203(a)(1).</ENT> </ROW> <ROW> <ENT I="01">B11</ENT> <ENT>Self-petition Unmarried Son or Daughter of U.S. Citizen</ENT> <ENT>204(a)(1)(A)(iv) & 203(a)(1).</ENT> </ROW> <ROW RUL="s"> <ENT I="01">B12</ENT> <ENT>Child of B11</ENT> <ENT>203(d), 204(a)(1)(A)(iv) & 203(a)(1).</ENT> </ROW> <ROW EXPSTB="02" RUL="s"> <ENT I="21"> <E T="02">Family 2nd Preference (Subject to Country Limitations)</E> </ENT> </ROW> <ROW EXPSTB="00"> <ENT I="01">F21</ENT> <ENT>Spouse of Lawful Permanent Resident</ENT> <ENT>203(a)(2)(A).</ENT> </ROW> <ROW> <ENT I="01">F22</ENT> <ENT>Child of Lawful Permanent Resident</ENT> <ENT>203(a)(2)(A).</ENT> </ROW> <ROW> <ENT I="01">F23</ENT> <ENT>Child of F21 or F22</ENT> <ENT>203(d) & 203(a)(2)(A).</ENT> </ROW> <ROW> <ENT I="01">F24</ENT> <ENT>Unmarried Son or Daughter of Lawful Permanent Resident</ENT> <ENT>203(a)(2)(B).</ENT> </ROW> <ROW> <ENT I="01">F25</ENT> <ENT>Child of F24</ENT> <ENT>203(d) & 203(a)(2)(B).</ENT> </ROW> <ROW> <ENT I="01">C21</ENT> <ENT>Spouse of Lawful Permanent Resident (Conditional)</ENT> <ENT>203(a)(2)(A) & 216.</ENT> </ROW> <ROW> <ENT I="01">C22</ENT> <ENT>Child of Alien Resident (Conditional)</ENT> <ENT>203(a)(2)(A) & 216.</ENT> </ROW> <ROW> <ENT I="01">C23</ENT> <ENT>Child of C21 or C22 (Conditional)</ENT> <ENT>203(d) & 203(a)(2)(A) & 216.</ENT> </ROW> <ROW> <ENT I="01">C24</ENT> <ENT>Unmarried Son or Daughter of Lawful Permanent Resident (Conditional)</ENT> <ENT>203(a)(2)(B) & 216.</ENT> </ROW> <ROW> <ENT I="01">C25</ENT> <ENT>Child of F24 (Conditional)</ENT> <ENT>203(d) & 203(a)(2)(B) & 216.</ENT> </ROW> <ROW> <ENT I="01">B21</ENT> <ENT>Self-petition Spouse of Lawful Permanent Resident</ENT> <ENT>204(a)(1)(B)(ii).</ENT> </ROW> <ROW> <ENT I="01">B22</ENT> <ENT>Self-petition Child of Lawful Permanent Resident</ENT> <ENT>204(a)(1)(B)(iii).</ENT> </ROW> <ROW> <ENT I="01">B23</ENT> <ENT>Child of B21 or B22</ENT> <ENT>203(d) & 204(a)(1)(B)(ii).</ENT> </ROW> <ROW> <ENT I="01">B24</ENT> <ENT>Self-petition Unmarried Son or Daughter of Lawful Permanent Resident</ENT> <ENT>204(a)(1)(B)(iii).</ENT> </ROW> <ROW RUL="s"> <ENT I="01">B25</ENT> <ENT>Child of B24</ENT> <ENT>203(d) & 204(a)(1)(B)(iii).</ENT> </ROW> <ROW EXPSTB="02" RUL="s"> <ENT I="21"> <E T="02">Family 2nd Preference (Exempt from Country Limitations)</E> </ENT> </ROW> <ROW EXPSTB="00"> <ENT I="01">FX1</ENT> <ENT>Spouse of Lawful Permanent Resident</ENT> <ENT>202(a)(4)(A) & 203(a)(2)(A).</ENT> </ROW> <ROW> <ENT I="01">FX2</ENT> <ENT>Child of Lawful Permanent Resident</ENT> <ENT>202(a)(4)(A) & 203(a)(2)(A).</ENT> </ROW> <ROW> <ENT I="01">FX3</ENT> <ENT>Child of FX1 or FX2</ENT> <ENT>202(a)(4)(A) & 203(a)(2)(A) & 203(d).</ENT> </ROW> <ROW> <ENT I="01">CX1</ENT> <ENT>Spouse of Lawful Permanent Resident (Conditional)</ENT> <ENT>202(a)(4)(A) & 203(a)(2)(A) & 216.</ENT> </ROW> <ROW> <ENT I="01">CX2</ENT> <ENT>Child of Lawful Permanent Resident (Conditional)</ENT> <ENT>202(a)(4)(A) & 203(a)(2)(A) & 216.</ENT> </ROW> <ROW> <ENT I="01">CX3</ENT> <ENT>Child of CX1 or CX2 (Conditional)</ENT> <ENT>202(a)(4)(A) & 203(a)(2)(A) & 203(d) & 216.</ENT> </ROW> <ROW> <ENT I="01">BX1</ENT> <ENT>Self-petition Spouse of Lawful Permanent Resident</ENT> <ENT>204(a)(1)(B)(ii).</ENT> </ROW> <ROW> <ENT I="01">BX2</ENT> <ENT>Self-petition Child of Lawful Permanent Resident</ENT> <ENT>204(a)(1)(B)(iii).</ENT> </ROW> <ROW RUL="s"> <ENT I="01">BX3</ENT> <ENT>Child of BX1 or BX2</ENT> <ENT>204(a)(1)(B)(ii) & 203(d).</ENT> </ROW> <ROW EXPSTB="02" RUL="s"> <ENT I="21"> <E T="02">Family 3rd Preference</E> </ENT> </ROW> <ROW EXPSTB="00"> <ENT I="01">F31</ENT> <ENT>Married Son or Daughter of U.S. Citizen</ENT> <ENT>203(a)(3).</ENT> </ROW> <ROW> <ENT I="01">F32</ENT> <ENT>Spouse of F31</ENT> <ENT>203(d) & 203(a)(3).</ENT> </ROW> <ROW> <ENT I="01">F33</ENT> <ENT>Child of F31</ENT> <ENT>203(d) & 203(a)(3).</ENT> </ROW> <ROW> <ENT I="01">C31</ENT> <ENT>Married Son or Daughter of U.S. Citizen (Conditional)</ENT> <ENT>203(a)(3) & 216.</ENT> </ROW> <ROW> <ENT I="01">C32</ENT> <ENT>Spouse of C31 (Conditional)</ENT> <ENT>203(d) & 203(a)(3) & 216.</ENT> </ROW> <ROW> <PRTPAGE P="199"/> <ENT I="01">C33</ENT> <ENT>Child of C31 (Conditional)</ENT> <ENT>203(d) & 203(a)(3) & 216.</ENT> </ROW> <ROW> <ENT I="01">B31</ENT> <ENT>Self-petition Married Son or Daughter of U.S. Citizen</ENT> <ENT>204(a)(1)(A)(iv) & 203(a)(3).</ENT> </ROW> <ROW> <ENT I="01">B32</ENT> <ENT>Spouse of B31</ENT> <ENT>203(d), 204(a)(1)(A)(iv) & 203(a)(3).</ENT> </ROW> <ROW RUL="s"> <ENT I="01">B33</ENT> <ENT>Child of B31</ENT> <ENT>203(d), 204(a)(1)(A)(iv) & 203(a)(3).</ENT> </ROW> <ROW EXPSTB="02" RUL="s"> <ENT I="21"> <E T="02">Family 4th Preference</E> </ENT> </ROW> <ROW EXPSTB="00"> <ENT I="01">F41</ENT> <ENT>Brother or Sister of U.S. Citizen at Least 21 Years of Age</ENT> <ENT>203(a)(4).</ENT> </ROW> <ROW> <ENT I="01">F42</ENT> <ENT>Spouse of F41</ENT> <ENT>203(d) & 203(a)(4).</ENT> </ROW> <ROW RUL="s"> <ENT I="01">F43</ENT> <ENT>Child of F41</ENT> <ENT>203(d) & 203(a)(4).</ENT> </ROW> <ROW EXPSTB="02"> <ENT I="21"> <E T="02">Employment-Based Preferences</E> </ENT> </ROW> <ROW RUL="s"> <ENT I="21"> <E T="02">Employment 1st Preference (Priority Workers)</E> </ENT> </ROW> <ROW EXPSTB="00"> <ENT I="01">E11</ENT> <ENT>Alien with Extraordinary Ability</ENT> <ENT>203(b)(1)(A).</ENT> </ROW> <ROW> <ENT I="01">E12</ENT> <ENT>Outstanding Professor or Researcher</ENT> <ENT>203(b)(1)(B).</ENT> </ROW> <ROW> <ENT I="01">E13</ENT> <ENT>Multinational Executive or Manager</ENT> <ENT>203(b)(1)(C).</ENT> </ROW> <ROW> <ENT I="01">E14</ENT> <ENT>Spouse of E11, E12, or E13</ENT> <ENT>203(d) & 203(b)(1)(A) & 203(b)(1)(B) & 203(b)(1)(C).</ENT> </ROW> <ROW RUL="s"> <ENT I="01">E15</ENT> <ENT>Child of E11, E12, or E13</ENT> <ENT>203(d) & 203(b)(1)(A) & 203(b)(1)(B) & 203(b)(1)(C).</ENT> </ROW> <ROW EXPSTB="02" RUL="s"> <ENT I="21"> <E T="02">Employment 2nd Preference (Professionals Holding Advanced Degrees or Persons of Exceptional Ability)</E> </ENT> </ROW> <ROW EXPSTB="00"> <ENT I="01">E21</ENT> <ENT>Professional Holding Advanced Degree or Alien of Exceptional Ability</ENT> <ENT>203(b)(2).</ENT> </ROW> <ROW> <ENT I="01">E22</ENT> <ENT>Spouse of E21</ENT> <ENT>203(d) & 203(b)(2).</ENT> </ROW> <ROW RUL="s"> <ENT I="01">E23</ENT> <ENT>Child of E21</ENT> <ENT>203(d) & 203(b)(2).</ENT> </ROW> <ROW EXPSTB="02" RUL="s"> <ENT I="21"> <E T="02">Employment 3rd Preference (Skilled Workers, Professionals, and Other Workers)</E> </ENT> </ROW> <ROW EXPSTB="00"> <ENT I="01">E31</ENT> <ENT>Skilled Worker</ENT> <ENT>203(b)(3)(A)(i).</ENT> </ROW> <ROW> <ENT I="01">E32</ENT> <ENT>Professional Holding Baccalaureate Degree</ENT> <ENT>203(b)(3)(A)(ii).</ENT> </ROW> <ROW> <ENT I="01">E34</ENT> <ENT>Spouse of E31 or E32</ENT> <ENT>203(d) & 203(b)(3)(A)(i) & 203(b)(3)(A)(ii).</ENT> </ROW> <ROW> <ENT I="01">E35</ENT> <ENT>Child of E31 or E32</ENT> <ENT>203(d) & 203(b)(3)(A)(i) & 203(b)(3)(A)(ii).</ENT> </ROW> <ROW> <ENT I="01">EW3</ENT> <ENT>Other Worker (Subgroup Numerical Limit)</ENT> <ENT>203(b)(3)(A)(iii).</ENT> </ROW> <ROW> <ENT I="01">EW4</ENT> <ENT>Spouse of EW3</ENT> <ENT>203(d) & 203(b)(3)(A)(iii).</ENT> </ROW> <ROW RUL="s"> <ENT I="01">EW5</ENT> <ENT>Child of EW3</ENT> <ENT>203(d) & 203(b)(3)(A)(iii).</ENT> </ROW> <ROW EXPSTB="02" RUL="s"> <ENT I="21"> <E T="02">Employment 4th Preference (Certain Special Immigrants)</E> </ENT> </ROW> <ROW EXPSTB="00"> <ENT I="01">BC1</ENT> <ENT>Broadcaster in the U.S. employed by the International Broadcasting Bureau of the Broadcasting Board of Governors or a grantee of such organization</ENT> <ENT>101(a)(27)(M) & 203(b)(4).</ENT> </ROW> <ROW> <ENT I="01">BC2</ENT> <ENT>Accompanying spouse of BC1</ENT> <ENT>101(a)(27)(M) & 203(b)(4).</ENT> </ROW> <ROW> <ENT I="01">BC3</ENT> <ENT>Accompanying child of BC1</ENT> <ENT>101(a)(27)(M) & 203(b)(4).</ENT> </ROW> <ROW> <ENT I="01">SD1</ENT> <ENT>Minister of Religion</ENT> <ENT>101(a)(27)(C)(ii)(I) & 203(b)(4).</ENT> </ROW> <ROW> <ENT I="01">SD2</ENT> <ENT>Spouse of SD1</ENT> <ENT>101(a)(27)(C)(ii)(I) & 203(b)(4).</ENT> </ROW> <ROW> <ENT I="01">SD3</ENT> <ENT>Child of SD1</ENT> <ENT>101(a)(27)(C)(ii)(I) & 203(b)(4).</ENT> </ROW> <ROW> <ENT I="01">SE1</ENT> <ENT>Certain Employees or Former Employees of the U.S. Government Abroad</ENT> <ENT>101(a)(27)(D) & 203(b)(4).</ENT> </ROW> <ROW> <ENT I="01">SE2</ENT> <ENT>Spouse of SE1</ENT> <ENT>101(a)(27)(D) & 203(b)(4).</ENT> </ROW> <ROW> <ENT I="01">SE3</ENT> <ENT>Child of SE1</ENT> <ENT>101(a)(27)(D) & 203(b)(4).</ENT> </ROW> <ROW> <ENT I="01">SF1</ENT> <ENT>Certain Former Employees of the Panama Canal Company or Canal Zone Government</ENT> <ENT>101(a)(27)(E) & 203(b)(4).</ENT> </ROW> <ROW> <ENT I="01">SF2</ENT> <ENT>Spouse or Child of SF1</ENT> <ENT>101(a)(27)(E) & 203(b)(4).</ENT> </ROW> <ROW> <ENT I="01">SG1</ENT> <ENT>Certain Former Employees of the U.S. Government in the Panama Canal Zone</ENT> <ENT>101(a)(27)(F) & 203(b)(4).</ENT> </ROW> <ROW> <ENT I="01">SG2</ENT> <ENT>Spouse or Child of SG1</ENT> <ENT>101(a)(27)(F) & 203(b)(4).</ENT> </ROW> <ROW> <ENT I="01">SH1</ENT> <ENT>Certain Former Employees of the Panama Canal Company or Canal Zone Government on April 1, 1979</ENT> <ENT>101(a)(27)(G) & 203(b)(4).</ENT> </ROW> <ROW> <ENT I="01">SH2</ENT> <ENT>Spouse or Child of SH1</ENT> <ENT>101(a)(27)(G) & 203(b)(4).</ENT> </ROW> <ROW> <ENT I="01">SJ1</ENT> <ENT>Certain Foreign Medical Graduates (Adjustments Only)</ENT> <ENT>101(a)(27)(H).</ENT> </ROW> <ROW> <ENT I="01">SJ2</ENT> <ENT>Accompanying Spouse or Child of SJ1</ENT> <ENT>101(a)(27)(H) & 203(b)(4).</ENT> </ROW> <ROW> <ENT I="01">SK1</ENT> <ENT>Certain Retired International Organization employees</ENT> <ENT>101(a)(27)(I)(iii) & 203(b)(4).</ENT> </ROW> <ROW> <ENT I="01">SK2</ENT> <ENT>Spouse of SK1</ENT> <ENT>101(a)(27)(I)(iv) & 203(b)(4).</ENT> </ROW> <ROW> <ENT I="01">SK3</ENT> <ENT>Certain Unmarried Sons or Daughters of an International Organization Employee</ENT> <ENT>101(a)(27)(I)(i) & 203(b)(4).</ENT> </ROW> <ROW> <ENT I="01">SK4</ENT> <ENT>Certain Surviving Spouses of a deceased International Organization Employee</ENT> <ENT>101(a)(27)(I)(ii) & 203(b)(4).</ENT> </ROW> <ROW> <ENT I="01">SL1</ENT> <ENT>Juvenile Court Dependent (Adjustment Only)</ENT> <ENT>101(a)(27)(J) & 203(b)(4).</ENT> </ROW> <ROW> <ENT I="01">SN1</ENT> <ENT>Certain retired NATO6 civilians</ENT> <ENT>101(a)(27)(L) & 203(b)(4).</ENT> </ROW> <ROW> <ENT I="01">SN2</ENT> <ENT>Spouse of SN1</ENT> <ENT>101(a)(27)(L) & 203(b)(4).</ENT> </ROW> <ROW> <PRTPAGE P="200"/> <ENT I="01">SN3</ENT> <ENT>Certain unmarried sons or daughters of NATO6 civilian employees</ENT> <ENT>101(a)(27)(L) & 203(b)(4).</ENT> </ROW> <ROW> <ENT I="01">SN4</ENT> <ENT>Certain surviving spouses of deceased NATO6 civilian employees</ENT> <ENT>101(a)(27)(L) & 203(b)(4).</ENT> </ROW> <ROW> <ENT I="01">SP</ENT> <ENT>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</ENT> <ENT>Section 421 of Public Law 107-56.</ENT> </ROW> <ROW> <ENT I="01">SR1</ENT> <ENT>Certain Religious Workers</ENT> <ENT>101(a)(27)(C)(ii)(II) & (III) as amended, & 203(b)(4).</ENT> </ROW> <ROW> <ENT I="01">SR2</ENT> <ENT>Spouse of SR1</ENT> <ENT>101(a)(27)(C)(ii)(II) & (III) as amended, & 203(b)(4).</ENT> </ROW> <ROW RUL="s"> <ENT I="01">SR3</ENT> <ENT>Child of SR1</ENT> <ENT>101(a)(27)(C)(ii)(II) & (III) as amended, & 203(b)(4).</ENT> </ROW> <ROW EXPSTB="02" RUL="s"> <ENT I="21"> <E T="02">Employment 5th Preference (Employment Creation Conditional Status)</E> </ENT> </ROW> <ROW EXPSTB="00"> <ENT I="01">C51</ENT> <ENT>Employment Creation OUTSIDE Targeted Areas</ENT> <ENT>203(b)(5)(A).</ENT> </ROW> <ROW> <ENT I="01">C52</ENT> <ENT>Spouse of C51</ENT> <ENT>203(d) & 203(b)(5)(A).</ENT> </ROW> <ROW> <ENT I="01">C53</ENT> <ENT>Child of C51</ENT> <ENT>203(d) & 203(b)(5)(A).</ENT> </ROW> <ROW> <ENT I="01">T51</ENT> <ENT>Employment Creation IN Targeted Rural/High Unemployment Area</ENT> <ENT>203(b)(5)(B).</ENT> </ROW> <ROW> <ENT I="01">T52</ENT> <ENT>Spouse of T51</ENT> <ENT>203(d) & 203(b)(5)(B).</ENT> </ROW> <ROW> <ENT I="01">T53</ENT> <ENT>Child of T51</ENT> <ENT>203(d) & 203(b)(5)(B).</ENT> </ROW> <ROW> <ENT I="01">R51</ENT> <ENT>Investor Pilot Program, Not in Targeted Area</ENT> <ENT>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.</ENT> </ROW> <ROW> <ENT I="01">R52</ENT> <ENT>Spouse of R51</ENT> <ENT>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.</ENT> </ROW> <ROW> <ENT I="01">R53</ENT> <ENT>Child of R51</ENT> <ENT>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.</ENT> </ROW> <ROW> <ENT I="01">I51</ENT> <ENT>Investor Pilot Program, in Targeted Area</ENT> <ENT>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.</ENT> </ROW> <ROW> <ENT I="01">I52</ENT> <ENT>Spouse of I51</ENT> <ENT>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.</ENT> </ROW> <ROW RUL="s"> <ENT I="01">I53</ENT> <ENT>Child of I51</ENT> <ENT>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.</ENT> </ROW> <ROW EXPSTB="02"> <ENT I="21"> <E T="02">Other Numerically Limited Categories</E> </ENT> </ROW> <ROW RUL="s"> <ENT I="21"> <E T="02">Diversity Immigrants</E> </ENT> </ROW> <ROW EXPSTB="00"> <ENT I="01">DV1</ENT> <ENT>Diversity Immigrant</ENT> <ENT>203(c).</ENT> </ROW> <ROW> <ENT I="01">DV2</ENT> <ENT>Spouse of DV1</ENT> <ENT>203(d) & 203(c).</ENT> </ROW> <ROW> <ENT I="01">DV3</ENT> <ENT>Child of DV1</ENT> <ENT>203(d) & 203(c).</ENT> </ROW> </GPOTABLE> <CITA>[73 FR 14931, Mar. 20, 2008]</CITA> </SECTION> <SECTION> <SECTNO>§ 42.12</SECTNO> <SUBJECT>Rules of chargeability.</SUBJECT> <P>(a) <E T="03">Applicability.</E> 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 <PRTPAGE P="201"/>of families or the alien is classifiable under:</P> <P>(1) INA 201(b);</P> <P>(2) INA 101(a)(27) (A) or (B);</P> <P>(3) Section 112 of Public Law 101-649;</P> <P>(4) Section 124 of Public Law 101-649;</P> <P>(5) Section 132 of Public Law 101-649;</P> <P>(6) Section 134 of Public Law 101-649; or</P> <P>(7) Section 584(b)(1) as contained in section 101(e) of Public Law 100-202.</P> <P>(b) <E T="03">Exception for child.</E> 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).</P> <P>(c) <E T="03">Exception for spouse.</E> 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).</P> <P>(d) <E T="03">Exception for alien born in the United States.</E> 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).</P> <P>(e) <E T="03">Exception for alien born in foreign state in which neither parent was born or had residence at time of alien's birth.</E> 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.</P> <CITA>[52 FR 42613, Nov. 5, 1987, as amended at 56 FR 49681, Oct. 1, 1991]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Immigrants Not Subject to Numerical Limitations of INA 201 and 202</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>56 FR 49676, Oct. 1, 1991, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 42.21</SECTNO> <SUBJECT>Immediate relatives.</SUBJECT> <P>(a) <E T="03">Entitlement to status.</E> 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.</P> <P>(b) <E T="03">Spouse of a deceased U.S. citizen.</E> 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.</P> <P>(c) <E T="03">Child of a U.S. citizen victim of terrorism.</E> 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 <PRTPAGE P="202"/>received an approved petition according such status or official notification of such approval.</P> <CITA>[56 FR 49676, Oct. 1, 1991, as amended at 64 FR 55419, Oct. 13, 1999; 67 FR 1415, Jan. 11, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 42.22</SECTNO> <SUBJECT>Returning resident aliens.</SUBJECT> <P>(a) <E T="03">Requirements for returning resident status.</E> 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:</P> <P>(1) The alien had the status of an alien lawfully admitted for permanent residence at the time of departure from the United States;</P> <P>(2) The alien departed from the United States with the intention of returning and has not abandoned this intention; and</P> <P>(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.</P> <P>(b) <E T="03">Documentation needed.</E> 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.</P> <P>(c) <E T="03">Returning resident alien originally admitted under the Act of December 28, 1945.</E> 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.</P> <CITA>[56 FR 49676, Oct. 1, 1991, as amended at 63 FR 48578, Sept. 11, 1998]</CITA> </SECTION> <SECTION> <SECTNO>§ 42.23</SECTNO> <SUBJECT>Certain former U.S. citizens.</SUBJECT> <P>(a) <E T="03">Women expatriates.</E> An alien woman, regardless of marital status, shall be classifiable as a special immigrant under INA 101(a)(27)(B) if the consular officer is satisfied by appropriate evidence that she was formerly a U.S. citizen and that she meets the requirements of INA 324(a).</P> <P>(b) <E T="03">Military expatriates.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 42.24</SECTNO> <SUBJECT>Adoption under the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption and the Intercountry Adoption Act of 2000.</SUBJECT> <P>(a) For purposes of this section, the definitions in 22 CFR 96.2 apply.</P> <P>(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), <E T="03">provided that</E> 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.</P> <P>(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.</P> <P>(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 <PRTPAGE P="203"/>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.</P> <P>(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.</P> <P>(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).</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(j) After the consular officer has received appropriate notification from the country of origin that the adoption or grant of legal custody has occurred <PRTPAGE P="204"/>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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <CITA>[72 FR 61305, Oct. 30, 2007]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Immigrants Subject to Numerical Limitations</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>56 FR 49676, Oct. 1, 1991, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 42.31</SECTNO> <SUBJECT>Family-sponsored immigrants.</SUBJECT> <P>(a) <E T="03">Entitlement to status.</E> 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.</P> <P>(b) <E T="03">Entitlement to derivative status.</E> 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.</P> <CITA>[56 FR 49676, Oct. 1, 1991, as amended at 61 FR 1836, Jan. 24, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 42.32</SECTNO> <SUBJECT>Employment-based preference immigrants.</SUBJECT> <P>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.</P> <P>(a) <E T="03">First preference—Priority workers</E>—(1) <E T="03">Entitlement to status.</E> 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 <PRTPAGE P="205"/>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).</P> <P>(2) <E T="03">Entitlement to derivative status.</E> 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.</P> <P>(b) <E T="03">Second preference—Professionals with advanced degrees or persons of exceptional ability</E>—(1) <E T="03">Entitlement to status.</E> 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).</P> <P>(2) <E T="03">Entitlement to derivative status.</E> 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.</P> <P>(c) <E T="03">Third preference—Skilled workers, professionals, other workers</E>—(1) <E T="03">Entitlement to status.</E> 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).</P> <P>(2) <E T="03">Entitlement to derivative status.</E> 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.</P> <P>(d) <E T="03">Fourth preference—Special immigrants</E>—(1) <E T="03">Religious workers</E>—(i) <E T="03">Classification based on qualifications under INA 101(A)(27)(C).</E> An alien shall be classifiable under INA 203(b)(4) as a special immigrant described in INA 101(a)(27)(C) if:</P> <P>(A) The consular officer has received a petition approved by DHS to accord such classification, or an official notification of such approval; and</P> <P>(B) The consular officer is satisfied from the evidence presented that the alien qualifies under that section; or</P> <P>(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.</P> <P>(ii) <E T="03">Timeliness of application.</E> 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.</P> <P>(2) <E T="03">Certain U.S. Government employees</E>—(i) <E T="03">General.</E> (A) An alien is classifiable under INA 203(b)(4) as a special immigrant described in INA 101(a)(27)(D) if a petition to accord such status has been approved by the Secretary 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 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 so to do.</P> <P>(B) An alien may qualify as a special immigrant under INA 101(a)(27)(D) on the basis of employment abroad with 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.</P> <P>(C) Pursuant to INA 203(d), and whether or not named in the petition, <PRTPAGE P="206"/>the spouse or child of an alien classified under INA 203(b)(4), if not 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.</P> <P>(ii) <E T="03">Special immigrant status for certain aliens employed at the United States mission in Hong Kong.</E> (A) An alien employed at the United States Consulate General in Hong Kong under the authority of the Chief of Mission or an alien employed pursuant to section 5913 of title 5 of the United States Code is eligible for classification under INA 203(b)(4) as a special immigrant described in INA 101(a)(27)(D) provided:</P> <P>(<E T="03">1</E>) The alien has performed faithfully for a total of three years or more;</P> <P>(<E T="03">2</E>) The alien is a member of the immediate family of an employee entitled to such special immigrant status; and</P> <P>(<E T="03">3</E>) The welfare of the alien or the family member is subject to clear threat due directly to the employee's employment with the United States Government or under a United States Government official; and</P> <P>(<E T="03">4</E>) Subsequent to the Secretary's approval of the Principal Officer's recommendation and finding it in the national interest to do so, but within one year thereof, the alien has filed a petition for status under INA 203(b)(4) which the Secretary has approved.</P> <P>(B) An alien desiring to benefit from this provision must seek such status not later than January 1, 2002.</P> <P>(C) For purposes of § 42.32(d)(2)(ii)(A), the term <E T="03">member of the immediate family</E> means the definition (as of November 29, 1990) in Volume 6 of the Foreign Affairs Manual, section 117k, of a relative who has been living with the employee in the same household.</P> <P>(iii) <E T="03">Priority date.</E> The priority date of an alien seeking status under INA 203(b)(4) as a special immigrant described in INA 101(a)(27)(D) shall be the date on which the petition to accord such classification is filed. The filing date of the petition is that on which a properly completed form and the required fee are accepted by a Foreign Service post.</P> <P>(iv) <E T="03">Petition validity.</E> 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. In cases described in § 42.32(d)(2)(ii), the validity of the petition shall not in any case extend beyond January 1, 2002.</P> <P>(v) <E T="03">Extension of petition validity.</E> If the principal officer of a post concludes that circumstances in a particular case are such that an extension of the validity of the Secretary's approval of special immigrant status or of the petition would be in the national interest, the principal officer shall recommend to the Secretary of State that such validity be extended for not more than one additional year.</P> <P>(vi) <E T="03">Fees.</E> 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 has approved status as a special immigrant under INA 101(a)(27)(D) for the alien.</P> <P>(vii) <E T="03">Delegation of authority to approve petitions.</E> 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's approval of special immigrant status for the petitioning alien.</P> <P>(3) <E T="03">Panama Canal employees</E>—(i) <E T="03">Entitlement to status.</E> 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