[Title 22 CFR ]
[Code of Federal Regulations (annual edition) - April 1, 2010 Edition]
[From the U.S. Government Printing Office]



[[Page i]]

          

          22


          Parts 1 to 299

                         Revised as of April 1, 2010


          Foreign Relations
          



________________________

          Containing a codification of documents of general 
          applicability and future effect

          As of April 1, 2010
          With Ancillaries
                    Published by
                    Office of the Federal Register
                    National Archives and Records
                    Administration
                    A Special Edition of the Federal Register

[[Page ii]]

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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........................    1107
      Alphabetical List of Agencies Appearing in the CFR......    1127
      List of CFR Sections Affected...........................    1137

[[Page iv]]





                     ----------------------------

                     Cite this Code: CFR
                     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.

                     ----------------------------

[[Page v]]



                               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 
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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
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1

    The appropriate revision date is printed on the cover of each 
volume.

LEGAL STATUS

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HOW TO USE THE CODE OF FEDERAL REGULATIONS

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OMB CONTROL NUMBERS

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Federal agencies to display an OMB control number with their information 
collection request.

[[Page vi]]

Many agencies have begun publishing numerous OMB control numbers as 
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the revision dates of the 50 CFR titles.




[[Page vii]]



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    Director,
    Office of the Federal Register.
    April 1, 2010.







[[Page ix]]



                               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, 2010.

    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.


[[Page 1]]



                       TITLE 22--FOREIGN RELATIONS




                   (This book contains parts 1 to 299)

  --------------------------------------------------------------------
                                                                    Part

chapter i--Department of State..............................           1

chapter ii--Agency for International Development............         200

[[Page 3]]



                     CHAPTER I--DEPARTMENT OF STATE




  --------------------------------------------------------------------

                          SUBCHAPTER A--GENERAL
Part                                                                Page
1               Insignia of rank............................           9
2               Protection of foreign dignitaries and other 
                    official personnel......................           9
3               Gifts and decorations from foreign 
                    governments.............................          11
3a              Acceptance of employment from foreign 
                    governments by members of the uniformed 
                    services................................          17
4               Notification of foreign official status.....          19
5               Organization................................          20
7               [Reserved]

8               Advisory committee management...............          22
9               Security information regulations............          27
9a              Security information regulations applicable 
                    to certain international energy 
                    programs; related material..............          31
9b              Regulations governing Department of State 
                    press building passes...................          33
                         SUBCHAPTER B--PERSONNEL
11              Appointment of Foreign Service officers.....          37
12              Complaints against employees by alleged 
                    creditors...............................          55
13              Personnel...................................          55
16              Foreign Service grievance system............          56
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..........          64
18              Regulations concerning post employment 
                    conflict of interest....................          67
19              Benefits for spouses and former spouses of 
                    participants in the Foreign Service 
                    retirement and disability system........          71
20              Benefits for certain former spouses.........          92

[[Page 4]]

21              Indemnification of employees................          95
                      SUBCHAPTER C--FEES AND FUNDS
22              Schedule of fees for consular services--
                    Department of State and Foreign Service.          97
23              Finance and accounting......................         102
                SUBCHAPTER D--CLAIMS AND STOLEN PROPERTY
33              Fishermen's Protective Act Guaranty Fund 
                    procedures under section 7..............         104
34              Debt collection.............................         108
35              Program fraud civil remedies................         119
                           SUBCHAPTER E--VISAS
40              Regulations pertaining to both nonimmigrants 
                    and immigrants under the Immigration and 
                    Nationality Act, as amended.............         135
41              Visas: Documentation of nonimmigrants under 
                    the Immigration and Nationality Act, as 
                    amended.................................         148
42              Visas: Documentation of immigrants under the 
                    Immigration and Nationality Act, as 
                    amended.................................         194
43-45           [Reserved]

46              Control of aliens departing from the United 
                    States..................................         221
47              [Reserved]

                 SUBCHAPTER F--NATIONALITY AND PASSPORTS
50              Nationality procedures......................         227
51              Passports...................................         232
52              Marriages...................................         247
53              Passport requirement and exceptions.........         247
              SUBCHAPTER G--PUBLIC DIPLOMACY AND EXCHANGES
61              World-wide free flow of audio-visual 
                    materials...............................         250
62              Exchange visitor program....................         253
63              Payments to and on behalf of participants in 
                    the international educational and 
                    cultural exchange program...............         309
64              Participation by Federal employees in 
                    cultural exchange programs of foreign 
                    countries...............................         314
65              Foreign students............................         316
66              Availability of the records of the National 
                    Endowment for Democracy.................         317

[[Page 5]]

67              Organization of the National Endowment for 
                    Democracy...............................         325
 SUBCHAPTER H--PROTECTION AND WELFARE OF AMERICANS, THEIR PROPERTY AND 
                                 ESTATES
71              Protection and welfare of citizens and their 
                    property................................         330
72              Deaths and estates..........................         333
                    SUBCHAPTER I--SHIPPING AND SEAMEN
89              Prohibitions on longshore work by U.S. 
                    nationals...............................         342
                SUBCHAPTER J--LEGAL AND RELATED SERVICES
91              Import controls.............................         351
92              Notarial and related services...............         351
93              Service on foreign state....................         380
94              International child abduction...............         381
95              Implementation of torture convention in 
                    extradition cases.......................         384
96              Accreditation of agencies and approval of 
                    persons under the Intercountry Adoption 
                    Act of 2000 (IAA).......................         385
97              Issuance of adoption certificates and 
                    custody delarations in Hague Convention 
                    adoption cases..........................         439
98              Intercountry adoption--Convention record 
                    preservation............................         442
99              Reporting on Convention and non-Convention 
                    adoptions of emigrating children........         443
               SUBCHAPTER K--ECONOMIC AND OTHER FUNCTIONS
101             Economic and commercial functions...........         445
102             Civil aviation..............................         446
103             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.........................         451
104             International trafficking in persons: 
                    Interagency coordination of activities 
                    and sharing of information..............         458
                         SUBCHAPTER L [RESERVED]
         SUBCHAPTER M--INTERNATIONAL TRAFFIC IN ARMS REGULATIONS
120             Purpose and definitions.....................         460
121             The United States munitions list............         468
122             Registration of manufacturers and exporters.         492

[[Page 6]]

123             Licenses for the export of defense articles.         496
124             Agreements, off-shore procurement and other 
                    defense services........................         511
125             Licenses for the export of technical data 
                    and classified defense articles.........         523
126             General policies and provisions.............         529
127             Violations and penalties....................         546
128             Administrative procedures...................         553
129             Registration and licensing of brokers.......         559
130             Political contributions, fees and 
                    commissions.............................         563
                       SUBCHAPTER N--MISCELLANEOUS
131             Certificates of authentication..............         570
132             Books, maps, newspapers, etc................         570
133             Governmentwide requirements for drug-free 
                    workplace (financial assistance)........         570
134             Equal Access to Justice Act; implementation.         576
135             Uniform administrative requirements for 
                    grants and cooperative agreements to 
                    state and local governments.............         582
136             Personal property disposition at posts 
                    abroad..................................         609
138             New restrictions on lobbying................         612
139             Irish peace process cultural and training 
                    program.................................         624
140             Prohibition on assistance to drug 
                    traffickers.............................         628
                       SUBCHAPTER O--CIVIL RIGHTS
141             Nondiscrimination in federally-assisted 
                    programs of the Department of State--
                    effectuation of title VI of the Civil 
                    Rights Act of 1964......................         635
142             Nondiscrimination on the basis of handicap 
                    in programs or activities receiving 
                    Federal financial assistance............         644
143             Nondiscrimination on the basis of age in 
                    programs or activities receiving Federal 
                    financial assistance....................         657
144             Enforcement of non-discrimination on the 
                    basis of handicap in programs or 
                    activities conducted by the United 
                    States Department of State..............         662
145             Grants and agreements with institutions of 
                    higher education, hospitals, and other 
                    non-profit organizations................         668

[[Page 7]]

146             Nondiscrimination on the basis of sex in 
                    education programs or activities 
                    receiving Federal financial assistance..         696
           SUBCHAPTER P--DIPLOMATIC PRIVILEGES AND IMMUNITIES
151             Compulsory liability insurance for 
                    diplomatic missions and personnel.......         713
                 SUBCHAPTER Q--ENVIRONMENTAL PROTECTION
161             Regulations for implementation of the 
                    National Environmental Policy Act (NEPA)         716
                   SUBCHAPTER R--ACCESS TO INFORMATION
171             Availability of information and records to 
                    the public..............................         729
172             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......         748
                 SUBCHAPTER S--INTERNATIONAL AGREEMENTS
181             Coordination, reporting and publication of 
                    international agreements................         754
                      SUBCHAPTER T--HOSTAGE RELIEF
191             Hostage relief assistance...................         762
192             Victims of terrorism compensation...........         769
193             Benefits for hostages in Iraq, Kuwait, or 
                    Lebanon.................................         780
           SUBCHAPTER U--INTERNATIONAL COMMERCIAL ARBITRATION
194             Inter-American Commercial Arbitration 
                    Commission rules of procedure...........         782
196             Thomas R. Pickering Foreign Affairs/Graduate 
                    Foreign Affairs Fellowship Program......         789

[[Page 9]]



                          SUBCHAPTER A_GENERAL



PART 1_INSIGNIA OF RANK--Table of Contents




Sec.
1.1 Office of the Secretary of State.
1.2 Office of the Deputy Secretary of State.
1.3 Office of the Under Secretaries of State.

    Authority: Sec. 4, 63 Stat. 111, as amended; 22 U.S.C. 2658.



Sec. 1.1  Office of the Secretary of State.

    The official flag indicative of the office of Secretary of State 
shall be as follows: On a blue rectangular field a white disk bearing 
the official coat of arms of the United States adopted by the act of 
June 20, 1782, in proper colors. In each of the four corners a white 
five-pointed star with one point upward. The colors and automobile flag 
to be the same design, adding a white fringe. For the colors a cord and 
tassel of blue and white to be added. The sizes to be in accordance with 
military and naval customs.

[22 FR 10788, Dec. 27, 1957]



Sec. 1.2  Office of the Deputy Secretary of State.

    The official flag indicative of the office of the Deputy Secretary 
of State shall be as follows: On a white rectangular field a blue disk 
bearing the official coat of arms of the United States adopted by act of 
June 20, 1782, in proper colors. In each of the four corners a five-
pointed star with one point upward. The colors and automobile flag to be 
the same design, adding a blue fringe. For the colors a cord and tassel 
of white in accordance with military and naval customs.

[38 FR 30258, Nov. 2, 1973]



Sec. 1.3  Office of the Under Secretaries of State.

    The official flag indicative of the office of the Under Secretaries 
of State shall be as follows: On a red rectangular field a white disk 
bearing the official coat of arms of the United States adopted by act of 
June 20, 1782, in proper colors. In each of the four corners a white 
five-pointed star with one point upward. The colors and automobile flag 
to be the same design, adding a white fringe. For the colors a cord and 
tassel of white and red to be added. The sizes to be in accordance with 
military and naval customs.

[38 FR 30258, Nov. 2, 1973]



PART 2_PROTECTION OF FOREIGN DIGNITARIES AND OTHER OFFICIAL PERSONNEL--Table 

of Contents




Sec.
2.1 Designation of personnel to carry firearms and exercise appropriate 
          power of arrest.
2.2 Purpose.
2.3 Notification of foreign officials.
2.4 Designation of official guests.
2.5 Records.



Sec. 2.1  Designation of personnel to carry firearms and exercise appropriate 

power of arrest.

    (a) The Deputy Assistant Secretary of State for Security is 
authorized to designate certain employees of the Department of State and 
the Foreign Service, as well as employees of other departments and 
agencies detailed to and under the supervision and control of the 
Department of State, as Security Officers, as follows.
    (1) Persons so designated shall be authorized to carry firearms when 
engaged in the performance of the duties prescribed in section (1) of 
the act of June 28, 1955, 69 Stat. 188, as amended. No person shall be 
so designated unless he has either qualified in the use of firearms in 
accordance with standards established by the Deputy Assistant Secretary 
of State for Security, or in accordance with standards established by 
the department or agency from which he is detailed.
    (2) Persons so designated shall also be authorized, when engaged in 
the performance of duties prescribed in section (1) of the act of June 
28, 1955, 69 Stat. 188, as amended, to arrest without warrant and 
deliver into custody any person violating the provisions of section 111 
or 112 of title 18, United States Code, in their presence or if they 
have reasonable grounds to believe that the person to be arrested has

[[Page 10]]

committed or is committing such felony.
    (b) When the Under Secretary of State for Management determines that 
it is necessary, persons designated under paragraph (a) of this section 
shall be authorized to provide protection to an individual who has been 
designated by the President to serve as Secretary of State, prior to his 
appointment, or to a departing Secretary of State. In providing such 
protection, they are authorized to exercise the authorities described in 
paragraphs (a) (1) and (2) of section. Such protection shall be for the 
period or periods determined necessary by the Under Secretary of State 
for Management, except that in the case of a departing Secretary of 
State, the period of protection under this paragraph shall in no event 
exceed 30 calendar days from the date of termination of that 
individual's incumbency as Secretary of State.
    (c) When the Under Secretary of State for Management determines that 
it is necessary, persons designated under paragraph (a) of this section 
shall be authorized to provide protection to a departing United States 
Representative to the United Nations. In providing such protection, they 
are authorized to exercise the authorities described in paragraphs (a) 
(1) and (2) of this section. Such protection shall be for the period or 
periods determined necessary by the Under Secretary of State for 
Management, except that the period of protection under this paragraph 
shall in no event exceed 30 calendar days from the date of termination 
of that individual's incumbency as United States Representative to the 
United Nations.

(Sec. 4, 63 Stat. 111, as amended, sec. 1, 69 Stat. 188; 22 U.S.C. 2658, 
2666)

[29 FR 15571, Nov. 20, 1964, as amended at 47 FR 30480, July 14, 1982; 
50 FR 14379, Apr. 12, 1985]



Sec. 2.2  Purpose.

    Section 1116(b)(2) of title 18 of the United States Code, as added 
by Pub. L. 92-539, An Act for the Protection of Foreign Officials and 
Official Guests of the United States (86 Stat. 1071), defines the term 
``foreign official'' for purposes of that Act as ``any person of a 
foreign nationality who is duly notified to the United States as an 
officer or employee of a foreign government or international 
organization, and who is in the United States on official business, and 
any member of his family whose presence in the United States is in 
connection with the presence of such officer or employee.'' Section 
1116(c)(4) of the same Act defines the term ``official guest'' for the 
purposes of that Act as ``a citizen or national of a foreign country 
present in the United States as an official guest of the Government of 
the United States pursuant to designation as such by the Secretary of 
State.'' It is the purpose of this regulation to specify the officer of 
the Department of State who shall be responsible for receiving 
notification of foreign officials under the Act and determining whether 
persons are ``duly notified'' to the United States and who shall be 
responsible for processing official guest designations by the Secretary 
of State.

(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))

[37 FR 24817, Nov. 22, 1972]



Sec. 2.3  Notification of foreign officials.

    (a) Any notification of a foreign official for purposes of section 
1116(b)(2) of Title 18 of the United States Code shall be directed by 
the foreign government or international organization concerned to the 
Chief of Protocol, Department of State, Washington, DC 20520. For 
persons normally accredited to the United States in diplomatic or 
consular capacities and also for persons normally accredited to the 
United Nations and other international organizations and in turn 
notified to the Department of State, the procedure for placing a person 
in the statutory category of being ``duly notified to the United 
States'' shall be the current procedure for accreditation, with 
notification in turn when applicable. The Chief of the Office of 
Protocol will place on the roster of persons ``duly notified to the 
United States'' the names of all persons currently accredited and, when 
applicable, notified in turn, and will maintain the roster as part of 
the official files of the Department of State adding to and deleting 
therefrom as changes in accreditations occur.

[[Page 11]]

    (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.

(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))

[37 FR 24818, Nov. 22, 1972]



Sec. 2.4  Designation of official guests.

    The Chief of Protocol shall also maintain a roster of persons 
designated by the Secretary of State as official guests. Any inquiries 
by law enforcement officers or other persons as to whether a person has 
been so designated shall be directed to the Chief of Protocol. The 
designation of a person as an official guest is final. Pursuant to 
section 2658 of title 22 of the U.S.C., the authority of the Secretary 
of State to perform the function of designation of official guests is 
hereby delegated to the Chief of Protocol.

(22 U.S.C. 2658)

[45 FR 55716, Aug. 21, 1980]



Sec. 2.5  Records.

    The Chief of Protocol shall maintain as a part of the official files 
of the Department of State a cumulative roster of all persons who have 
been duly notified as foreign officials or designated as official guests 
under this part. The roster will reflect the name, position, 
nationality, and foreign government or international organization 
concerned or purpose of visit as an official guest and reflect the date 
the person was accorded recognition as being ``duly notified to the 
United States'' or designated as an official guest and the date, if any, 
of termination of such status.

(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))

[37 FR 24818, Nov. 22, 1972]



PART 3_GIFTS AND DECORATIONS FROM FOREIGN GOVERNMENTS--Table of Contents




Sec.
3.1 Purpose.
3.2 Authority.
3.3 Definitions.
3.4 Restriction on acceptance of gifts and decorations.
3.5 Designation of officials and offices responsible for administration 
          of foreign gifts and decorations.
3.6 Procedure to be followed by employees in depositing gifts of more 
          than minimal value and reporting acceptance of travel or 
          travel expenses.
3.7 Decorations.
3.8 Approval of retention of gifts or decorations with employing agency 
          for official use.
3.9 Disposal of gifts and decorations which become the property of the 
          United States.
3.10 Enforcement.
3.11 Responsibility of chief of mission to inform host government of 
          restrictions on employees' receipt of gifts and decorations.
3.12 Exemption of grants and other foreign government assistance in 
          cultural exchange programs from coverage of foreign gifts and 
          decorations legislation.

    Authority: Sec. 515(a)(1), 91 Stat. 862, amending 5 U.S.C. 7342 
(1976).

    Source: 45 FR 80819, Dec. 8, 1980, unless otherwise noted.



Sec. 3.1  Purpose.

    These regulations provide basic standards for employees of the 
Department of State, the United States International Development 
Cooperation Agency (IDCA), the Agency for International Development 
(AID), and the International Communication Agency (USICA), their spouses 
(unless separated) and their dependents to accept and retain gifts and 
decorations from foreign governments.



Sec. 3.2  Authority.

    (a) Section 515(a)(1) of the Foreign Relations Authorization Act of 
1978 (91 Stat. 862-866), approved August 17, 1977,

[[Page 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.
    (b) 5 U.S.C. 7342(g) authorizes each employing agency to prescribe 
regulations as necessary to carry out the new law.



Sec. 3.3  Definitions.

    When used in this part, the following terms have the meanings 
indicated:
    (a) Employee means (1) an officer or employee of the Department, 
AID, IDCA, or USICA, including an expert or consultant, however 
appointed, and (2) a spouse (unless separated) or a dependent of such a 
person, as defined in section 152 of the Internal Revenue Code of 1954 
(26 U.S.C. 152).
    (b) Foreign government means: (1) Any unit of foreign governmental 
authority, including any foreign national, State, local, or municipal 
government; (2) any international or multinational organization whose 
membership is composed of any unit of foreign government as described in 
paragraph (b)(1) of this section; (3) any agent or representative of any 
such unit or organization, while acting as such;
    (c) Gift means a tangible or intangible present (other than a 
decoration) tendered by, or received from, a foreign government;
    (d) Decoration means an order, device, medal, badge, insignia, 
emblem or award tendered by, or received from, a foreign government;
    (e) Minimal value means retail value in the United States at the 
time of acceptance of $100 or less, except that on January 1, 1981, and 
at 3-year intervals thereafter, ``minimal value'' is to be redefined in 
regulations prescribed by the Administrator of General Services, in 
consultation with the Secretary of State, to reflect changes in the 
consumer price index for the immediately preceding 3-year period.



Sec. 3.4  Restriction on acceptance of gifts and decorations.

    (a) An employee is prohibited from requesting or otherwise 
encouraging the tender of a gift or decoration from a foreign 
government. An employee is also prohibited from accepting a gift or 
decoration from a foreign government, except in accordance with these 
regulations.
    (b) An employee may accept and retain a gift of minimal value 
tendered and received as a souvenir or mark of courtesy, subject, 
however, to the following restrictions--
    (1) Where more than one tangible item is included in a single 
presentation, the entire presentation shall be considered as one gift, 
and the aggregate value of all items taken together must not exceed 
``minimal value''.
    (2) The donee is responsible for determining that a gift is of 
minimal value in the United States at the time of acceptance. However, 
should any dispute result from a difference of opinion concerning the 
value of a gift, the employing agency will secure the services of an 
outside appraiser to establish whether the gift is one of ``minimal 
value''. If, after an appraisal has been made, it is established that 
the value of the gift in question is $200 or more at retail in the 
United States, the donee will bear the costs of the appraisal. If, 
however, the appraised value is established to be less than $200, the 
employing agency will bear the costs.
    (c) An employee may accept a gift of more than minimal value when 
(1) such gift is in the nature of an educational scholarship or medical 
treatment, or (2) it appears that to refuse the gift would likely cause 
offense or embarrassment or otherwise adversely affect the foreign 
relations of the United States, except that a tangible gift of more than 
minimal value is deemed to have been accepted on behalf of the United 
States and, upon acceptance, shall become the property of the United 
States.
    (d) An employee may accept gifts of travel or expenses for travel 
taking place entirely outside the United States (such as transportation, 
food, and lodging) of more than minimal value if such acceptance is 
appropriate, consistent with the interests of the United States, and 
permitted by the employing agency. Except where the employing agency has 
specific interests which may be favorably affected by employee travel 
wholly outside the

[[Page 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.
    (1) There are two circumstances under which employees may accept 
gifts of travel or expenses:
    (i) When the employee is issued official travel orders placing him 
or her in the position of accepting travel or travel expenses offered by 
a foreign government which are directly related to the authorized 
purpose of the travel; or
    (ii) When the employee's travel orders specifically anticipate the 
acceptance of additional travel and travel expenses incident to the 
authorized travel.
    (2) When an employee is traveling under circumstances described in 
paragraph (d)(1)(i) of this section, that is, without specific 
instructions authorizing acceptance of additional travel expenses from a 
foreign government, the employee must file a report with the employing 
angency under the procedures prescribed in Sec. 3.6.
    (e) Since tangible gifts of more than minimal value may not lawfully 
become the personal property of the donee, all supervisory officials 
shall, in advising employees of their responsibilities under the 
regulations, impress upon them their obligation to decline acceptance of 
such gifts, whenever possible, at the time they are offered, or to 
return them if they have been sent or delivered without a prior offer. 
All practical measures, such as periodic briefings, shall be taken to 
minimize the number of gifts which employees must deposit and which thus 
become subject to disposal as provided by law and regulation. Employees 
should not accept gifts of more than minimal value on the assumption 
that refusal would be likely to ``cause offense or embarrassment or 
otherwise adversely affect the foreign relations of the United States''. 
In many instances it should be possible, by explanation of the 
prohibition against an employee's retention of such gifts, to avoid 
consequences of acceptance, including possible return of the gift to the 
donor. Refusal of the gift at the inception should typically be regarded 
as in the interest both of the foreign government donor and the U.S. 
Government.



Sec. 3.5  Designation of officials and offices responsible for administration 

of foreign gifts and decorations.

    (a) The Act effects a significant degree of decentralization of 
administration relative to the disposal of foreign gifts and decorations 
which become U.S. Government property. Each agency is now responsible 
for receiving from its employees deposits of foreign gifts of more than 
minimal value, as well as of foreign decorations not meeting the 
statutory criteria for retention by the recipient. The agency is also 
responsible for disposing of this property by return to the donor, for 
retaining it in the agency if official use of it is approved, for 
reporting to the General Services Administration within 30 calendar days 
after deposit items neither disposed of nor retained, and for assuming 
custody, proper care and handling of such property pending removal from 
that custody pursuant to disposal arrangements by the General Services 
Administration. The Secretary of State, however, is made responsible for 
providing guidance to other executive agencies in the development of 
their own regulations to implement the Act, as well as for the annual 
publication of lists of all gifts of more than minimal value deposited 
by Federal employees during the preceding year. [See Sec. 3.5(c).] 
Authority for the discharge of the Secretary's responsibilities is 
delegated by these regulations to the Chief of Protocol.
    (b) The Office of the Chief of Protocol retains primary 
responsibility for administration of the Act within the Department of 
State. That Office will, however, serve as the depository only for those 
foreign gifts and decorations which are turned in by State Department 
employees. The Director of Personnel Services of the USICA will have 
responsibility for administration of the Act within that agency and will 
serve as the depository of foreign gifts and decorations. Employees of 
the other

[[Page 14]]

foreign affairs agencies must deposit with their respective agencies any 
gifts or decorations deposit of which is required by law.
    (c) Any questions concerning the implementation of these regulations 
or interpretation of the law should be directed to the following:
    (1) For the Department of State, to the Office of Protocol or to the 
Office of the Assistant Legal Adviser for Management, as appropriate;
    (2) For IDCA, to the Office of the General Counsel;
    (3) For AID, to the Assistant General Counsel for Employee and 
Public Affairs; and
    (4) For USICA, to the General Counsel.



Sec. 3.6  Procedure to be followed by employees in depositing gifts of more 

than minimal value and reporting acceptance of travel or travel expenses.

    (a) An employee who has accepted a tangible gift of more than 
minimal value shall, within 60 days after acceptance, relinquish it to 
the designated depository office for the employing agency for disposal 
or, with the approval of that office, deposit it for official use at a 
designated location in the employing agency or at a specified Foreign 
Service post. The designated depository offices are:
    (1) For the Department of State, the Office of Protocol;
    (2) For IDCA, the General Services Division of the Office of 
Management Planning in AID;
    (3) For AID, the General Services Division of the Office of 
Management Planning; and
    (4) For USICA, the Office of Personnel Services.
    (b) At the time that an employee deposits gifts of more than minimal 
value for disposal or for official use pursuant to paragraph (a) of this 
section, or within 30 days after accepting a gift of travel or travel 
expenses as provided in Sec. 3.4(d) (unless the gift of such travel or 
travel expenses has been accepted in accordance with specific 
instructions from the Department or agency), the employee shall file a 
statement with the designated depository office with the following 
information:
    (1) For each tangible gift reported:
    (i) The name and position of the employee;
    (ii) A brief description of the gift and the circumstances 
justifying acceptance;
    (iii) The identity of the foreign government and the name and 
position of the individual who presented the gift;
    (iv) The date of acceptance of the gift;
    (v) The donee's best estimate in specific dollar terms of the value 
of the gift in the United States at the time of acceptance; and
    (vi) Disposition or current location of the gift. (For State 
Department employees, forms for this purpose are available in the Office 
of Protocol.)
    (2) For each gift of travel or travel expenses:
    (i) The name and position of the employee;
    (ii) A brief description of the gift and the circumstances 
justifying acceptance; and
    (iii) The identity of the foregign government and the name and 
position of the individual who presented the gift.
    (c) The information contained in the statements called for in 
paragraph (b) of this section is needed to comply with the statutory 
requirement that, not later than Janaury 31 of each year, the Secretary 
of State publish in the Federal Register 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.



Sec. 3.7  Decorations.

    (a) Decorations tendered in recognition of active field service in 
time of combat operations or awarded for other outstanding or unusually 
meritorious performance may be accepted, retained, and worn by an 
employee, subject to the approval of the employing agency. Without such 
approval, the decoration is deemed to have been accepted on behalf of 
the United States and, like tangible gifts of more than minimal value, 
must be deposited by the employee with the designated depository office 
for the employing agency within sixty days after acceptance, for 
retention for official use or for disposal in accordance with Sec. 3.9.

[[Page 15]]

    (b) The decision as to whether a decoration has been awarded for 
outstanding or unusually meritorious performance will be made:
    (1) For the Department of State, by the supervising Assistant 
Secretary of State or comparable official, except that, in the case of a 
decoration awarded to an Assistant Secretary or other officer of 
comparable or higher rank, the decision shall be made by the Office of 
Protocol;
    (2) For IDCA, by the Assistant Director for Administration;
    (3) For AID, by the Director of Personnel Management; and
    (4) For USICA, by the Supervising Associate Director, the General 
Counsel, or the Director of the Office of Congressional and Public 
Liaison (for domestic employees), and by the Director of Area Offices 
(for overseas employees).
    (c) To justify an affirmative decision, a statement from the foreign 
government, preferably in the form of a citation which shows the 
specific basis for the tender of the award, should be supplied. An 
employee who has received or been tendered a decoration should forward 
to the designated depository office of the employing agency a request 
for review of the case. This request should contain a statement of 
circumstances of the award and such documentation from the foreign 
government as has accompanied it. The depository office will obtain the 
decision of the cognizant office as to whether the award meets the 
statutory criteria and thus whether the decoration may be retained and 
worn. Pending receipt of that decision, the decoration should remain in 
the custody of the recipient.



Sec. 3.8  Approval of retention of gifts or decorations with employing agency 

for official use.

    (a) At the request of an overseas post or an office within the 
employing agency, a gift or decoration deemed to have been accepted on 
behalf of the United States may be retained for official use. Such 
retention should be approved:
    (1) For the Department of State, by the Chief of Protocol;
    (2) For IDCA, by AID's Director of Management Operations;
    (3) For AID, by the Director of Management Operations; and
    (4) For USICA, by the Associate Director for Management.

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.
    (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.



Sec. 3.9  Disposal of gifts and decorations which become the property of the 

United States.

    (a) Gifts and decorations which have been reported to an employing 
agency shall either be returned to the donor or kept in safe storage 
pending receipt of instructions from the General Services Administration 
for transfer, donation or other disposal under the provisions of the 
Federal Property and Administrative Services Act of 1949, 63 Stat. 377, 
as amended, and the Federal Property Management Regulations (41 CFR part 
101-49). The employing agency shall examine each gift or decoration and 
the circumstances surrounding its donation and assess whether any 
adverse effect upon the foreign relations of the United States might 
result from a return of the gift (or decoration) to the donor, which 
shall be the preferred

[[Page 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.
    (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.



Sec. 3.10  Enforcement.

    (a) Each employing agency is responsible under the Act for reporting 
to the Attorney General cases in which there is reason to believe that 
one of its employees has violated the Act. The Attorney General in turn 
may file a civil action in any United States District Court against any 
Federal employee who has knowingly solicited or accepted a gift from a 
foreign government in violation of the Act, or who has failed to deposit 
or report such gift, as an Act required by the Act. In such case, the 
court may assess a maximum penality of the retail value of a gift 
improperly solicited or received, plus $5,000.
    (b) Supervisory officials at all levels within employing agencies 
shall be responsible for providing periodic reorientation of all 
employees under their supervision on the basic features of the Act and 
these regulations, and for ensuring that those employees observe the 
requirements for timely reporting and deposit of any gifts of more than 
minimal value they may have accepted.
    (c) Employees are advised of the following actions which may result 
from failure to comply with the requirements of the Act and these 
regulations:
    (1) Any supervisor who has substantial reason to believe that an 
employee under his or her supervision has violated the reporting or 
other compliance provisions of the Act shall report the facts and 
circumstances in writing to the senior official in charge of 
administration within the cognizant bureau or office or at the post 
abroad. If that official upon investigation decides that an employee who 
is the donee of a gift or is the recipient of travel or travel expenses 
has, through actions within the employee's control, failed to comply 
with the procedures established by the Act and these regulations, the 
case shall be referred to the Attorney General for appropriate action.
    (2) In cases of confirmed evidence of a violation, whether or not 
such violation results in the taking of action by the Attorney General, 
the senior administrative official referred to in paragraph (c)(1) of 
this section as responsible for forwarding a violation report to the 
Attorney General shall institute appropriate disciplinary action against 
an employee who has failed to (i) Deposit tangible gifts within 60 days 
after acceptance, (ii) account properly for the acceptance of travel 
expenses or (iii) comply with the Act's requirements respecting disposal 
of gifts and decorations retained for official use.
    (3) In cases where there is confirmed evidence of a violation, but 
no evidence that the violation was willful on the part of the employee, 
the senior administrative official referred to in paragraph (c)(1) of 
this section shall institute appropriate disciplinary action of a lesser 
degree than that called for in

[[Page 17]]

paragraph (c)(2) of this section in order to deter future violations by 
the same or another employee.



Sec. 3.11  Responsibility of chief of mission to inform host government of 

restrictions on employees' receipt of gifts and decorations.

    A special provision of the Act requires the President to direct 
every chief of a United States diplomatic mission to inform the host 
government that it is a general policy of the United States Government 
to prohibit its employees from receiving gifts of more than minimal 
value or decorations that have not been tendered ``in recognition of 
active field service in time of combat operations or awarded for other 
outstanding or unusually meritorious performance.'' Accordingly, all 
Chiefs of Mission shall in January of each year conduct a thorough and 
explicit program of orientation aimed at appropriate officials of the 
host government concerning the operation of the Act.



Sec. 3.12  Exemption of grants and other foreign government assistance in 

cultural exchange programs from coverage of foreign gifts and decorations 

legislation.

    The Act specifically excludes from its application grants and other 
forms of assistance ``to which section 108A of the Mutual Educational 
and Cultural Exchange Act of 1961 applies''. See 22 U.S.C. 2558 (a) and 
(b) for the terms and conditions under which Congress consents to the 
acceptance by a Federal employee of grants and other forms of assistance 
provided by a foreign government to facilitate the participation of such 
employee in a cultural exchange.



PART 3a_ACCEPTANCE OF EMPLOYMENT FROM FOREIGN GOVERNMENTS BY MEMBERS OF THE 

UNIFORMED SERVICES--Table of Contents




Sec.
3a.1 Definitions.
3a.2 Requirement for approval of foreign government employment.
3a.3 Authority to approve or disapprove proposed foreign government 
          employment.
3a.4 Procedure for requesting approval.
3a.5 Basis for approval or disapproval.
3a.6 Notification of approval.
3a.7 Notification of disapproval and reconsideration.
3a.8 Change in status.

    Authority: Sec. 509, 91 Stat. 859 (37 U.S.C. 801 Note); sec. 4, as 
amended, 63 Stat. 111 (22 U.S.C. 2658).

    Source: 43 FR 55393, Nov. 28, 1978, unless otherwise noted.



Sec. 3a.1  Definitions.

    For purposes of this part--
    (a) Applicant means any person who requests approval under this part 
to accept any civil employment (and compensation therefor) from a 
foreign government and who is: (1) Any retired member of the uniformed 
services;
    (2) Any member of a Reserve component of the Armed Forces; or
    (3) Any member of the commissioned Reserve Corps of the Public 
Health Service.

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.
    (b) Uniformed services means the Armed Forces, the commissioned 
Regular and Reserve Corps of the Public Health Service, and the 
commissioned corps of the National Oceanic and Atmospheric 
Administration.
    (c) Armed Forces means the Army, Navy, Air Force, Marine Corps, and 
Coast Guard.
    (d) Secretary concerned means: (1) The Secretary of the Army, with 
respect to retired members of the Army and members of the Army Reserve;
    (2) The Secretary of the Navy, with respect to retired members of 
the Navy and the Marine Corps, members of the Navy and Marine Corps 
Reserves, and retired members of the Coast Guard and members of the 
Coast Guard Reserve when the Coast Guard is operating as a service in 
the Navy;
    (3) The Secretary of the Air Force, with respect to retired members 
of the Air Force and members of the Air Force Reserve;
    (4) The Secretary of Transportation, with respect to retired members 
of the Coast Guard and members of the Coast

[[Page 18]]

Guard Reserve when the Coast Guard is not operating as a service in the 
Navy;
    (5) The Secretary of Commerce, with respect to retired members of 
the commissioned corps of the National Oceanic and Atmospheric 
Administration; and
    (6) The Secretary of Health, Education, and Welfare, with respect to 
retired members of the commissioned Regular Corps of the Public Health 
Service and members of the commissioned Reserve Corps of the Public 
Health Service.



Sec. 3a.2  Requirement for approval of foreign government employment.

    (a) The United States Constitution (Article I, section 9, clause 8) 
prohibits the acceptance of civil employment with a foreign government 
by an officer of the United States without the consent of Congress. 
Congress has consented to the acceptance of civil employment (and 
compensation therefor) by any person described in Sec. 3a.1(b) subject 
to the approval of the Secretary concerned and the Secretary of State 
(37 U.S.C. 801, Note). Civil employment with a foreign government may 
not be accepted without such approval by any person so described.
    (b) The Secretary of State has no authority to approve employment 
with a foreign government by any officer of the United States other than 
a person described in Sec. 3a.1(a). The acceptance of employment with a 
foreign government by any other officer of the United States remains 
subject to the constitutional prohibition described in paragraph (a) of 
this section.
    (c) Any person described in Sec. 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. \1\
---------------------------------------------------------------------------

    \1\ 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 et 
seq.
---------------------------------------------------------------------------



Sec. 3a.3  Authority to approve or disapprove proposed foreign government 

employment.

    The Director, Bureau of Politico-Military Affairs, is authorized to 
approve or disapprove any request by an applicant for approval under 
this part to accept civil employment (and compensation therefor) from a 
foreign government. The Director may delegate this authority within the 
Bureau of Politico-Military Affairs, Department of State.



Sec. 3a.4  Procedure for requesting approval.

    (a) An applicant must submit a request for approval of foreign 
government employment to the Secretary concerned, whose approval is also 
required by law for the applicant's acceptance of civil employment from 
a foreign government. The request must contain information concerning 
the applicant's status, the nature of the proposed employment in as much 
detail as possible, the identity of and relationship to the foreign 
government concerned, and other matters as may be required by the 
Secretary concerned.
    (b) Requests approved by the Secretary concerned will be referred to 
the Director, Bureau of Politico-Military Affairs, for approval. 
Requests received by the Director, Bureau of Politico-Military Affairs, 
directly from an applicant will be initially forwarded to the Secretary 
concerned, or his designee, for approval of disapproval.



Sec. 3a.5  Basis for approval or disapproval.

    Decisions by the Director, Bureau of Politico-Military Affairs, 
under this part shall be based on whether the applicant's proposed 
employment with a foreign government would adversely affect the foreign 
relations of the United States, in light of the applicant's official 
status as a retiree or reservist.

[[Page 19]]



Sec. 3a.6  Notification of approval.

    The Director, Bureau of Politico-Military Affairs, will notify the 
Secretary concerned when an applicant's proposed foreign government 
employment is approved. Notification of approval to the applicant will 
be made by the Secretary concerned or his designee.



Sec. 3a.7  Notification of disapproval and reconsideration.

    (a) The Director, Bureau of Politico-Military Affairs, will notify 
the applicant directly when an applicant's proposed foreign employment 
is disapproved, and will inform the Secretary concerned.
    (b) Each notification of disapproval under this section must include 
a statement of the reasons for the disapproval, with as much specificity 
as security and foreign policy considerations permit, together with a 
notice of the applicant's right to seek reconsideration of the 
disapproval under paragraph (c) of this section.
    (c) Within 60 days after receipt of the notice of disapproval, an 
applicant whose request has been disapproved may submit a request for 
reconsideration by the Director, Bureau of Politico-Military Affairs. A 
request for reconsideration should provide information relevant to the 
reasons set forth in the notice of disapproval.
    (d) The disapproval of a request by the Director, Bureau of 
Politico-Military Affairs, will be final, unless a timely request for 
reconsideration is received. In the event of a request for 
reconsideration, the Director, Bureau of Politico-Military Affairs, will 
make a final decision after reviewing the record of the request. A final 
decision after reconsideration to approve the applicant's proposed 
employment with a foreign government will be communicated to the 
Secretary concerned as provided in Sec. 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.



Sec. 3a.8  Change in status.

    In the event that an applicant's foreign government employment 
approved under this part is to be materially changed, either by a 
substantial change in duties from those described in the request upon 
which the original approval was based, or by a change of employer, the 
applicant must obtain further approval in accordance with this part for 
such changed employment.



PART 4_NOTIFICATION OF FOREIGN OFFICIAL STATUS--Table of Contents




Sec.
4.1 General.
4.2 Procedure.

    Authority: 22 U.S.C. 2651a(a)(4).

    Source: 61 FR 32328, June 24, 1996, unless otherwise noted.



Sec. 4.1  General.

    In accordance with Article 10 of the Vienna Convention on Diplomatic 
Relations and Article 24 of the Vienna Convention on Consular Relations, 
diplomatic missions must notify the Office of Protocol immediately upon 
the arrival, in the United States, of any foreign government officer or 
employee (including domestics and family members), who are serving at 
diplomatic missions, consular posts, or miscellaneous foreign government 
offices. If the employee is already in the United States in some other 
capacity, the notification should be made upon assumption of duties. 
This initial notification requirement also includes all U.S. citizens 
and permanent resident aliens who are employed by foreign missions.



Sec. 4.2  Procedure.

    Notification and subsequent changes are made as follows:
    (a) Diplomatic and career consular officers and their dependents: 
Form DSP-110, Notification of Appointment of Foreign Diplomatic Officer 
and Career Consular Officer;
    (b) All other foreign government employees who are serving at 
diplomatic missions, consular posts, or miscellaneous foreign government 
offices and

[[Page 20]]

their dependents: Form DSP-111, Notification of Appointment of Foreign 
Government Employee.
    (c) Honorary consular officers: Form DSP-112, Notification of 
Appointment of Honorary Consular Officer.
    (d) Missions should use Form DSP-113, Notification of Change--
Identification Card Request, to promptly inform the Department of State 
of any change in the status of officers or employees of the missions and 
their family members originally reported to Protocol, or to apply for an 
identification card.
    (e) Upon termination of employment of any diplomatic or consular 
officer, honorary consular officer, embassy or consular employee, or 
miscellaneous foreign government staff member, a Form DSP-115, Notice of 
Termination of Diplomatic, Consular, or Foreign Government Employment, 
must be submitted to the Office of Protocol.



PART 5_ORGANIZATION--Table of Contents




Sec.
5.1 Introduction.
5.2 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.
5.3 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.
5.4 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.

    Authority: 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.

    Source: 33 FR 7078, May 11, 1968, unless otherwise noted.



Sec. 5.1  Introduction.

    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.



Sec. 5.2  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.

    (a) The following statements of the central and field organization 
of the Department of State and its Foreign Service posts are hereby 
prescribed:
    (1) The central organization of the Department of State was issued 
as Public Notice No. 267, 32 FR 8923, June 22, 1967.
    (2) The foreign field organization of the Department of State was 
issued as Public Notice No. 254, 32 FR 3712, March 3, 1967.
    (3) The domestic field organization of the Department of State was 
issued as Public Notice No. 268, 32 FR 8925, June 22, 1967.
    (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.
    (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.

[[Page 21]]



Sec. 5.3  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.

    Rules of procedure regarding the following listed matters may be 
consulted under the corresponding regulations referenced in Sec. 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:

----------------------------------------------------------------------------------------------------------------
              Subject matter                          Office                             Address
----------------------------------------------------------------------------------------------------------------
Appointment of Foreign Service Officers..  Board of Examiners for the   Department of State, Room 7314, 1800 N.
                                            Foreign Service.             Kent St., Arlington, Va. 22209.
Authentication and other services........  Document and Reference       Department of State, Room 2815, 22d and
                                            Division.                    D Sts. NW., Washington, DC 20520.
Claims and stolen property...............  Legal Adviser..............  Department of State, 2201 C Street NW.,
                                                                         Washington, DC 20520.
International educational and cultural     Bureau of Educational and    Department of State, 2201 C Street NW.,
 exchange program.                          Cultural Affairs.            Washington, DC 20520.
International traffic in arms............  Office of Munitions Control  Department of State, Room 800, 1700 N.
                                                                         Lynn St., Arlington, Va. 22209.
Nationality and passports................  Passport Office............  Department of State, Room 362, 1425 K
                                                                         St., NW., Washington, DC 20524.
Protection and welfare of U.S. citizens,   Office of Special Consular   Department of State, 2201 C Street NW.,
 shipping and seamen, and other consular    Services.                    Washington, DC 20520.
 services abroad.
Visa issuance............................  Visa Office................  Department of State, Annex 2, 515 22d
                                                                         Street NW., Washington, DC 20520.
----------------------------------------------------------------------------------------------------------------



Sec. 5.4  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.

    (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 Federal Register. Any 
person desiring information with respect to a particular procedure 
should examine the pertinent regulation cited hereafter.
    (b) The following are citations to regulations within the scope of 
this section.
    (1) Acceptance of Gifts and Decorations from Foreign Governments. 22 
CFR part 3 et seq.
    (2) Employee Responsibility and Conduct. 22 CFR part 10 et seq.
    (3) Appointment of Foreign Service Officers. 22 CFR part 11 et seq.
    (4) Fees for Services in the United States, fees and Charges, 
Foreign service. 22 CFR part 21 et seq.; 22 CFR part 22 et seq.
    (5) Claims and Stolen Property. 22 CFR part 31 et seq.
    (6) Issuance of Visas. 22 CFR parts 41-42 et seq.
    (7) Nationality and Passports. 22 CFR part 50 et seq.
    (8) International Educational and Cultural Exchanges. 22 CFR part 61 
et seq.
    (9) Protection and Welfare of Americans Abroad. 22 CFR part 71 et 
seq.
    (10) Shipping and Seamen Abroad. 22 CFR part 81 et seq.
    (11) Other Consular Services Abroad. 22 CFR part 91 et seq.
    (12) Economic, Commercial and Civil Air Functions Abroad. 22 CFR 
part 101 et seq.
    (13) International Traffic in Arms. 22 CFR part 121 et seq.
    (14) Certificates of Authentication. 22 CFR part 131 et seq.
    (15) Civil Rights. 22 CFR part 141 et seq.
    (16) Department of State Procurement. 41 CFR part 6-1 et seq.
    (c) These regulations are supplemented from time to time by 
amendments appearing initially in the Federal Register.

                            PART 7 [RESERVED]

[[Page 22]]



PART 8_ADVISORY COMMITTEE MANAGEMENT--Table of Contents




Sec.
8.1 Authorities.
8.2 Policy.
8.3 Scope.
8.4 Definitions.
8.5 Creation of a committee.
8.6 Membership.
8.7 Security.
8.8 Chartering of committees.
8.9 Meetings of advisory committees.
8.10 Reports.
8.11 Records.
8.12 Financial records.
8.13 Availability of records.
8.14 Public inquiries.

    Authority: 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.

    Source: 40 FR 28606, July 8, 1975, unless otherwise noted.



Sec. 8.1  Authorities.

    (a) Regulatory authorities. (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.
    (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.
    (b) Delegated authority. (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.
    (2) The Advisory Committee Management Officer in the Management 
Systems Staff administers the Committee Management Program for the 
Deputy Under Secretary for Management.



Sec. 8.2  Policy.

    (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.
    (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.
    (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)).



Sec. 8.3  Scope.

    (a) The Federal Advisory Committee Act applies to committees 
``established'' by the Government and to committees ``utilized'' though 
not established by the Government.
    (1) The President and the Congress, or the Department in 
consultation with the Office of Management and Budget, may establish 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.
    (2) Though not established by the President or the Department, a 
group utilized 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.
    (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 Sec. 8.4 of these regulations, and have all or most of 
the following characteristics:

[[Page 23]]

    (1) The purpose, objective or intent is that of providing advice to 
any officer or organizational component of the Department;
    (2) Has regular or periodic meetings;
    (3) Has fixed membership (membership may include more than one full 
time Federal officer or employee but is not comprised wholly of 
Government personnel);
    (4) Has an organizational structure (e.g., officers) and a staff.
    (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.
    (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.



Sec. 8.4  Definitions.

    (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--
    (1) Established by statute or reorganization plan, or
    (2) Established or utilized by the President, or
    (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.
    (b) A formal subgroup or subcommittee independently possesses 
significant requisites of an advisory committee, i.e., fixed membership, 
periodic meetings, et cetera.
    (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.



Sec. 8.5  Creation of a committee.

    (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 Sec. 8.6), and a 
justification for the need of the particular committee.
    (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.
    (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.
    (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.
    (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 
Federal Register at least 15 days prior to filing the committee charter.



Sec. 8.6  Membership.

    (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.
    (b) It is Department policy that members will be selected without 
regard to national origin, religion, race, sex, or color.
    (c) The committee office will keep the Advisory Committee Management 
Officer currently advised of a committee's membership including 
vacancies.

[[Page 24]]



Sec. 8.7  Security.

    (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.
    (b) The responsible committee office will provide the Advisory 
Committee Management Officer with each member's security clearance level 
and date of issue.
    (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.



Sec. 8.8  Chartering of committees.

    (a) Requirements. (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.
    (2) Formal subgroups may be chartered separately or the requisite 
information set forth in the charter of the parent committee.
    (3) Informal subgroups may not require a charter; however, the 
charter of the parent committee must cover this aspect of its 
organization.
    (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.
    (b) Contents. 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.
    (c) Termination and Renewal. (1) An existing advisory committee will 
be automatically terminated at the end of a 2-year period (i.e., date 
specified in charter) unless its charter is renewed, except for a 
statutory committee which has provisions providing to the contrary.
    (2) The Deputy Under Secretary for Management will make a 
determination, based on a comprehensive review, whether or not a 
committee will be continued.
    (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 Federal Register the Department's intent to 
continue those advisory committees so designated by the Deputy Under 
Secretary for Management.
    (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.
    (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.
    (d) Amendments. (1) The charter of a committee may be amended, as 
necessary, to reflect current information on organization, composition, 
activities, et cetera.
    (2) A proposed amendment must be approved prior to any committee 
activity to which the proposed amendment relates.



Sec. 8.9  Meetings of advisory committees.

    (a) Applicability. The term ``meeting'' covers any situation in 
which all or

[[Page 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.
    (b) Designated Department official. (1) No advisory committee may 
hold a meeting in the absence of the designated full-time Department or 
other U.S. Government officer.
    (2) The designated Department or other U.S. Government officer has 
the following responsibilities:
    (i) Prepares or approves the agenda for all meetings;
    (ii) Calls or approves in advance the calling of the meetings;
    (iii) Adjourns any meeting whenever he or she determines that 
adjournment is in the public interest.
    (c) Notice of meetings. (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.
    (2) Notice of each such meeting shall be published in the Federal 
Register and in a Department of State Press Release at least 15 days 
prior to the meeting date.
    (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:
    (i) Open meeting--clearance within initiating office/bureau;
    (ii) Closed meeting--clearance within initiating office/bureau 
including its legal adviser, and the Bureau of Public Affairs at the 
Bureau level.
    (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.
    (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.
    (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.
    (d) Contents of notice. (1) The content of the Federal Register 
public notice and the Department of State press release will be 
identical.
    (2) An open meeting 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.
    (3) A closed meeting 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.
    (e) Closed meetings. (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.
    (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.
    (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.
    (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

[[Page 26]]

for Management determines that a shorter period of time is necessary.
    (f) Cancelled meetings. (1) The cancellation of a scheduled 
committee meeting must be publicized without delay.
    (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.
    (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 Federal Register data, if known, concerning the 
announcement should be cited.
    (g) Rescheduled meetings. 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.
    (h) Minutes. (1) Detailed minutes of each advisory committee 
meeting, including subgroups, shall be kept.
    (2) The minutes for an open meeting 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.
    (3) The minutes for a closed meeting shall include all that is 
required for an open meeting except those items relating to the presence 
of the public.
    (4) The chairperson of each advisory committee shall certify the 
accuracy of the committee minutes.

(22 U.S.C. 2658 and 3926)

[40 FR 28606, July 8, 1975, as amended at 49 FR 16989, Apr. 23, 1984]



Sec. 8.10  Reports.

    (a) There are two categories of reports on advisory committees. One 
category is concerned with management and the other with advisory 
activities.
    (b) Management reports include:
    (1) Comprehensive Review. 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 October 1.
    (2) Annual Report. 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 December 31.
    (3) Report of Closed Meeting(s). 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.
    (4) Other reports. 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.
    (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.
    (d) All reports are submitted to the Advisory Committee Management 
Officer.
    (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.
    (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.)
    (3) The Report of Closed Meeting(s) is signed by the committee 
chairman and submitted in original and 8 copies.
    (4) The Advisory activities reports are submitted in 9 copies each, 
except Presidential advisory committee reports are submitted in 12 
copies.

[[Page 27]]



Sec. 8.11  Records.

    (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 inter alia agenda, drafts, minutes, notices, 
press releases, reports, studies, transcripts, and working papers.
    (b) The Advisory Committee Management Officer maintains the 
Department's official records relating to the management of all 
committees.



Sec. 8.12  Financial records.

    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.)



Sec. 8.13  Availability of records.

    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 Federal 
Register 7256-7529, February 19, 1975).



Sec. 8.14  Public inquiries.

    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.



PART 9_SECURITY INFORMATION REGULATIONS--Table of Contents




Sec.
9.1 Basis.
9.2 Objective.
9.3 Senior agency official.
9.4 Original classification.
9.5 Original classification authority.
9.6 Derivative classification.
9.7 Identification and marking.
9.8 Classification challenges.
9.9 Declassification and downgrading.
9.10 Mandatory declassification review.
9.11 Systematic declassification review.
9.12 Access to classified information by historical researchers and 
          certain former government personnel.
9.13 Safeguarding.

    Authority: 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).

    Source: 72 FR 30972, June 5, 2007, unless otherwise noted.



Sec. 9.1  Basis.

    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'').



Sec. 9.2  Objective.

    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.



Sec. 9.3  Senior agency official.

    The Executive Order requires that each agency that originates or 
handles classified information designate a senior agency official to 
direct and administer its information security program. The Department's 
senior agency official is the Under Secretary of State for Management. 
The senior agency official is assisted in carrying out the provisions of 
the Executive Order and the Department's information security program by 
the Assistant Secretary for Diplomatic Security, the Assistant Secretary 
for Administration, and the Deputy Assistant Secretary for Information 
Sharing Services.



Sec. 9.4  Original classification.

    (a) Definition. Original classification is the initial determination 
that certain information requires protection against unauthorized 
disclosure in the interest of national security (i.e., national defense 
or foreign relations of the United States), together with a designation 
of the level of classification.

[[Page 28]]

    (b) Classification levels. (1) Top Secret shall be applied to 
information the unauthorized disclosure of which reasonably could be 
expected to cause exceptionally grave damage to the national security 
that the original classification authority is able to identify or 
describe.
    (2) Secret shall be applied to information the unauthorized 
disclosure of which reasonably could be expected to cause serious damage 
to the national security that the original classification authority is 
able to identify or describe.
    (3) Confidential shall be applied to information the unauthorized 
disclosure of which reasonably could be expected to cause damage to the 
national security that the original classification authority is able to 
identify or describe.
    (c) Classification requirements and limitations. (1) Information may 
not be considered for classification unless it concerns:
    (i) Military plans, weapons systems, or operations;
    (ii) Foreign government information;
    (iii) Intelligence activities (including special activities), 
intelligence sources or methods, or cryptology;
    (iv) Foreign relations or foreign activities of the United States, 
including confidential sources;
    (v) Scientific, technological, or economic matters relating to the 
national security; which includes defense against transnational 
terrorism;
    (vi) United States Government programs for safeguarding nuclear 
materials or facilities;
    (vii) Vulnerabilities or capabilities of systems, installations, 
infrastructures, projects, plans, or protection services relating to the 
national security, which includes defense against transnational 
terrorism; or
    (viii) Weapons of mass destruction.
    (2) In classifying information, the public's interest in access to 
government information must be balanced against the need to protect 
national security information.
    (3) 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.
    (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.
    (5) Only information owned by, produced by or for, or under the 
control of the U.S. Government may be classified.
    (6) The unauthorized disclosure of foreign government information is 
presumed to cause damage to national security.
    (d) Duration of classification. (1) Information shall be classified 
for as long as is required by national security considerations, subject 
to the limitations set forth in section 1.5 of the Executive Order. When 
it can be determined, a specific date or event for declassification in 
less than 10 years shall be set by the original classification authority 
at the time the information is originally classified. If a specific date 
or event for declassification cannot be determined, information shall be 
marked for declassification 10 years from the date of the original 
decision, unless the original classification authority determines that 
the sensitivity of the information requires that it shall be marked for 
declassification for up to 25 years.
    (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.
    (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.



Sec. 9.5  Original classification authority.

    (a) Authority for original classification of information as Top 
Secret may be exercised by the Secretary and those officials delegated 
this authority in

[[Page 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.
    (b) Authority for original classification of information as Secret 
or Confidential may be exercised only by the Secretary, the Senior 
Agency Official, and those officials delegated this authority in writing 
by the Secretary or the Senior Agency Official. Such authority has been 
delegated to 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.



Sec. 9.6  Derivative classification.

    (a) Definition. Derivative classification is the incorporating, 
paraphrasing, restating or generating in new form information that is 
already classified and the marking of the new material consistent with 
the classification of the source material. Duplication or reproduction 
of existing classified information is not derivative classification.
    (b) Responsibility. Information classified derivatively from other 
classified information shall be classified and marked in accordance with 
instructions from an authorized classifier or in accordance with an 
authorized classification guide and shall comply with the standards set 
forth in sections 2.1-2.2 of the Executive Order and the ISOO 
implementing directives in 32 CFR 2001.22.
    (c) Department of State Classification Guide. The Department of 
State Classification Guide (DSCG) is the primary authority for the 
classification of information in documents created by Department of 
State personnel. The Guide is classified ``Confidential'' and is found 
on the Department of State's classified Web site.



Sec. 9.7  Identification and marking.

    (a) Classified information shall be marked pursuant to the standards 
set forth in section 1.6 of the Executive Order; ISOO implementing 
directives in 32 CFR 2001, Subpart B; and internal Department guidance 
in 12 Foreign Affairs Manual (FAM).
    (b) Foreign government information shall retain its original 
classification markings or be marked and classified at a U.S. 
classification level that provides a degree of protection at least 
equivalent to that required by the entity that furnished the 
information. Foreign government information retaining its original 
classification markings need not be assigned a U.S. classification 
marking provided the responsible agency determines that the foreign 
government markings are adequate to meet the purposes served by U.S. 
classification markings.
    (c) Information assigned a level of classification under predecessor 
executive orders shall be considered as classified at that level of 
classification.



Sec. 9.8  Classification challenges.

    (a) Challenges. 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.
    (b) Appeal procedures and time limits. A negative response may be 
appealed to the Department's Appeals Review Panel (ARP) and should be 
sent to: Chairman, Appeals Review Panel, c/o Information and Privacy 
Coordinator/Appeals Officer, at the IPS address given above. The appeal 
shall include a

[[Page 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.



Sec. 9.9  Declassification and downgrading.

    (a) Declassification processes. Declassification of classified 
information may occur:
    (1) After review of material in response to a Freedom of Information 
Act (FOIA) request, mandatory declassification review request, discovery 
request, subpoena, classification challenge, or other information access 
or declassification request;
    (2) After review as part of the Department's systematic 
declassification review program;
    (3) As a result of the elapse of the time or the occurrence of the 
event specified at the time of classification;
    (4) By operation of the automatic declassification provisions of 
section 3.3 of the Executive Order with respect to material more than 25 
years old.
    (b) Downgrading. When material classified at the Top Secret level is 
reviewed for declassification and it is determined that classification 
continues to be warranted, a determination shall be made whether 
downgrading to a lower level of classification is appropriate. If 
downgrading is determined to be warranted, the classification level of 
the material shall be changed to the appropriate lower level.
    (c) Authority to downgrade and declassify. (1) Classified 
information may be downgraded or declassified by 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.
    (2) The Department shall maintain a record of Department officials 
specifically designated as declassification and downgrading authorities.
    (d) Declassification in the public interest. Although information 
that continues to meet the classification criteria of the Executive 
Order or a predecessor order normally requires continued protection, in 
some exceptional cases the need to protect information may be outweighed 
by the public interest in disclosure of the information. When such a 
question arises, it shall be referred to the Secretary or the Senior 
Agency Official for decision on whether, as an exercise of discretion, 
the information should be declassified and disclosed. This provision 
does not amplify or modify the substantive criteria or procedures for 
classification or create any substantive or procedural right subject to 
judicial review.
    (e) Public dissemination of declassified information. 
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.



Sec. 9.10  Mandatory declassification review.

    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.



Sec. 9.11  Systematic declassification review.

    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

[[Page 31]]

review on the basis of researcher interest and the likelihood of 
declassification upon review.



Sec. 9.12  Access to classified information by historical researchers and 

certain former government personnel.

    For Department procedures regarding the access to classified 
information by historical researchers and certain former government 
personnel, see Sec. 171.24 of this Title.



Sec. 9.13  Safeguarding.

    Specific controls on the use, processing, storage, reproduction, and 
transmittal of classified information within the Department to provide 
protection for such information and to prevent access by unauthorized 
persons are contained in Volume 12 of the Department's Foreign Affairs 
Manual.



PART 9a_SECURITY INFORMATION REGULATIONS APPLICABLE TO CERTAIN INTERNATIONAL 

ENERGY PROGRAMS; RELATED MATERIAL--Table of Contents




Sec.
9a.1 Security of certain information and material related to the 
          International Energy Program.
9a.2 General policy.
9a.3 Scope.
9a.4 Classification.
9a.5 Declassification and downgrading.
9a.6 Marking.
9a.7 Access.
9a.8 Physical protection.

    Authority: E.O. 11932 (41 FR 32691), E.O. 11652 (37 FR 5209, 
National Security Council Directive of May 17, 1972 (37 FR 10053).

    Source: 42 FR 46516, Sept. 16, 1977; 42 FR 57687, Nov. 4, 1977, 
unless otherwise noted.



Sec. 9a.1  Security of certain information and material related to the 

International Energy Program.

    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.''



Sec. 9a.2  General policy.

    (a) The United States has entered into the Agreement on an 
International Energy Program of November 18, 1974, which created the 
International Energy Agency (IEA). This program is a substantial factor 
in the conduct of our foreign relations and an important element of our 
national security. The effectiveness of the Agreement depends 
significantly upon the provision and exchange of information and 
material by participants in advisory bodies created by the IEA. 
Confidentiality is essential to assure the free and open discussion 
necessary to accomplish the tasks assigned to those bodies.
    (b) These regulations establish procedures for the classification, 
declassification, storage, access, and dissemination of certain 
information related to the International Energy Program.



Sec. 9a.3  Scope.

    These regulations apply to all information and material classified 
by the United States under the provisions of E.O. 11932, dated August 4, 
1976 entitled ``Classification of Certain Information and Material 
Obtained From Advisory Bodies Created To Implement The International 
Energy Program.''



Sec. 9a.4  Classification.

    (a) Section 1 of E.O. 11932, August 4, 1976 directs that information 
and material obtained pursuant to the International Energy Program and 
which requires protection against unauthorized disclosure in the 
interest of the national defense or foreign relations of the United 
States shall be classified pursuant to Executive Order 11652.
    (b) Information and material, including transcripts, records, and 
communications, in the possession of the United States Government which 
has been obtained pursuant to (1) section 252(c)(3), (d)(2) or (e)(3) of 
the Energy Policy and Conservation Act (89 Stat. 871, 42 U.S.C. 
6272(c)(3), (d)(2), (e)(3)), or (2) The Voluntary Agreement and Program 
Relating to the International Energy Program (40 FR 16041, April 8, 
1975), or (3) the Voluntary Agreement and Plan of Action to Implement 
the International Energy Program (41 FR 13998, April 1, 1976), or (4) 
Any similar

[[Page 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.
    (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.



Sec. 9a.5  Declassification and downgrading.

    The provisions of E.O. 11652, 22 CFR 9.9 through 9.15, and 9a.4(b) 
shall govern declassification and downgrading of such information or 
material.



Sec. 9a.6  Marking.

    (a) The provisions of 22 CFR 9.15 through 9.19 shall govern the 
marking of information or material classified under the provisions of 
these regulations, except that the following stamp shall be used as 
appropriate:

(Top Secret, Secret or Confidential)
Classified by: ------------------------------
Under Executive Order 11932
Exempt from General Declassification Schedule of E.O. 11652 Exemption 
Category section 5B (2), (3), or (4); or E.O. 11932
Automatically Declassified on --------------
(effective date or event if any)


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.
    (b) If the information or material does not qualify for exemption 
from the General Declassification Schedule, ordinary stamps and marking 
may be used.



Sec. 9a.7  Access.

    (a) Except as set forth in this section, access to information or 
material classified under the provisions of these regulations shall be 
governed by the provisions of 22 CFR 9.20 through 9.25.
    (b) Classified information and material which was created by or in 
connection with an advisory body to the IEA may be made available to 
participants in such advisory body and their colleagues in accordance 
with the following subsections.
    (c) Such information and material classified ``Confidential'' may be 
made available for review to participants in the meeting of the advisory 
body in which it was developed or discussed. Where participants are 
acting as representatives of companies or of the IEA Secretariat, such 
information and material may be made available for review to employees 
or other representatives of, or counsel for, such companies or 
Secretariat: Provided, That such person is determined by an appropriate 
officer of the Department to be trustworthy and to have a need for 
access to the particular classified information sought in connection 
with the performance of duties in furtherance of the purposes of the 
IEA, including the furnishing of legal advice to such participants.
    (d) Such information and material classified ``Confidential'' may be 
left in the custody of such participants or other persons who may review 
it for reasonable period of time: Provided, That an appropriate officer 
of the Department determines that it will be protected from unauthorized 
disclosure by adequate security safeguards. Such information or material 
may not be reproduced by those permitted to review it pursuant to this 
section without the written consent of an officer of the Department with 
classifying authority.
    (e) Such information and material classified other than 
``Confidential'' under E.O. 11652 may be made available for review only 
to participants in the meeting in which it was developed or discussed; 
it must be reviewed in the presence of an official of the United States 
Government with an appropriate security clearance granted by the 
Department, and may not be left in the custody of such participants.

[[Page 33]]



Sec. 9a.8  Physical protection.

    Except as provided in Sec. 9a.7, the physical protection of 
information or material classified under this regulation shall be 
governed by the appropriate provisions of 22 CFR 9.45 through 9.49.



PART 9b_REGULATIONS GOVERNING DEPARTMENT OF STATE PRESS BUILDING PASSES--Table 

of Contents




Sec.
9b.1 Press access to the Department of State.
9b.2 Press correspondents employed by United States media organizations.
9b.3 Press correspondents employed by foreign media organizations.
9b.4 Department of State building press pass for technical crews.
9b.5 Temporary Department of State press building passes.
9b.6 Grounds for denial, revocation, or non-renewal of Department of 
          State press building passes.
9b.7 Procedures for denial, revocation, or non-renewal of Department of 
          State press building passes.
9b.8 Term and renewal of Department of State press building passes.

    Authority: 22 U.S.C. 2658.

    Source: 49 FR 4465, Feb. 7, 1984, unless otherwise noted.



Sec. 9b.1  Press access to the Department of State.

    (a) Media correspondents without valid Department of State press 
building passes shall have access to the Main State building identical 
to that enjoyed by members of the public.
    (b) Media correspondents holding valid Department of State press 
building passes:
    (1) May enter and have access 24 hours a day, during regular working 
hours, outside regular working hours, on weekends and on holidays, 
without an appointment, to the reception area of the Diplomatic Lobby, C 
Street Mezzanine area, press booths (Room 2310), press briefing room 
(Room 2118), and when in operation, the Office of Press Relations (Room 
2109).
    (2) May enter and have access without an appointment, on the 
basement level or on the first and second floors, to the cafeteria, post 
office, banks, concessionaries, barber shop, dry cleaners and the 
Foreign Affairs Recreation Association offices for the purposes for 
which they are established and when they are in operation.
    (3) May not escort non-passholders into the Department of State 
building.
    (c) Media correspondents, with or without a Department of State 
press building pass, may enter areas above the second floor of the Main 
State building only if the correspondent is invited by a Department 
employee to attend a specific social or official function in an office 
located above the second floor. Permission to enter areas above the 
second floor is strictly limited to direct passage to and from the 
appointment location of the Department of State employee, or the office 
or reception room where the function takes place.
    (d) Possession of State Department press building pass does not 
confer access to or other privileges at other Federal buildings. It is 
not to be construed as official United States Government recognition, 
approval or accreditation of a correspondent.

[54 FR 1686, Jan. 17, 1989]



Sec. 9b.2  Press correspondents employed by United States media organizations.

    In order to obtain a Department of State press building pass, press 
correspondents employed by United States media organizations must:
    (a) Present to the Office of Press Relations, Department of State, a 
letter from his or her organization stating:
    (1) That the applicant is a bona fide, full-time media correspondent 
based permanently and residing in the Washington, DC, metropolitan area;
    (2) That the applicant is employed by the certifying organization;
    (3) That the organization and the applicant have regular and 
substantial assignments in connection with the Department of State as 
evidence by regular attendance at the daily press briefings.
    (b) Submit to the Office of Press Relations, Department of State, 
Washington, DC 20520, a signed application and FORM DSP-97 for a press 
building pass. Applicants must comply with instructions contained in 
paragraphs 1 and 6 of FORM DSP-97 regarding fingerprinting and prior 
arrests. FORM

[[Page 34]]

DSP-97 requires the following information:
    (1) Name;
    (2) Affiliation with news media organizations;
    (3) Date of birth;
    (4) Place of birth;
    (5) Sex;
    (6) Citizenship;
    (7) Social Security or passport number;
    (8) Marital status;
    (9) Spouse name;
    (10) Office address and telephone number;
    (11) Length of employment;
    (12) Home address and telephone number; and
    (13) Length of residence.

[49 FR 4465, Feb. 7, 1984, as amended at 54 FR 1686, Jan. 17, 1989]



Sec. 9b.3  Press correspondents employed by foreign media organizations.

    In order to obtain a Department of State press building pass, 
correspondents employed by foreign media organizations must:
    (a) Present to the Office of Press Relations, Department of State, 
Washington, DC 20520 a letter from his or her organization stating:
    (1) That the applicant is a bona fide, full-time media correspondent 
based permanently and residing in the Washington, DC, metropolitan area:
    (2) That the applicant is employed by the certifying organization;
    (3) That the organization and the applicant have regular and 
substantial assignments in connection with the Department of State as 
evidence by regular attendance at the daily press briefings.
    (b) A letter from the Washington, DC Embassy of the nation where the 
organization is headquartered or from the Embassy of the United States 
in the nation where the organization is headquartered attesting to the 
existence of the news organization and the applicant's employment by 
that organization. The Director of the Office of Press Relations may 
accept a letter from another source attesting to the existence of such 
news organizations and the applicant's employment if, in his or her 
judgment, a substitute letter is warranted.
    (c) Submit to the Office of Press Relations, Department of State, 
Washington, DC 20520 a signed application and FORM DSP-97 for a press 
building pass. Applicants must comply with instructions contained in 
paragraphs 1 and 6 of FROM DSP-97 regarding fingerprinting and prior 
arrests. FORM DSP-97 requires the following information:
    (1) Name;
    (2) Affiliation with news media organizations;
    (3) Date of birth;
    (4) Place of birth;
    (5) Sex;
    (6) Citizenship;
    (7) Social Security or passport number;
    (8) Marital status;
    (9) Spouse name;
    (10) Office address and telephone number;
    (11) Length of employment;
    (12) Home address and telephone number; and
    (13) Length of residence.

[49 FR 4465, Feb. 7, 1984, as amended at 54 FR 1687, Jan. 17, 1989]



Sec. 9b.4  Department of State building press pass for technical crews.

    Department of State press building passes are issued to members of 
television and radio technical crews who provide technical support on a 
daily basis for media correspondents assigned to the Department of 
State. Members of technical crews who do not possess press passes, but 
who provide technical support for media correspondents assigned to the 
Department of State, may apply to the Office of Press Relations for a 
visitor's pass valid for one day.

[54 FR 1687, Jan. 17, 1989]



Sec. 9b.5  Temporary Department of State press building passes.

    A media correspondent or technician who meets all the qualifications 
stated in Sec. Sec. 9b.2(a)(1) and 9b.2(a)(2) or Sec. Sec. 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

[[Page 35]]

Press Relations for the issuance of a visitor's pass valid for one day.

[54 FR 1687, Jan. 17, 1989]



Sec. 9b.6  Grounds for denial, revocation, or non-renewal of Department of 

State press building passes.

    In consultation with the Bureau of Diplomatic Security and the 
Office of the Legal Adviser, the Director of the Office of Press 
Relations of the Department of State, may deny, revoke, or not renew the 
Department of State press building pass of any media correspondent or 
technician who:
    (a) Does not meet the qualifications stated in Sec. Sec. 
9b.2(a)(1), 9b.2(a)(2) and 9b.2(a)(3) or Sec. Sec. 9b.3(a)(1), 
9b.3(a)(2), 9b.3(a)(3) and 9b.3(b). (Upon denial, revocation, or non-
renewal the correspondent or technician may not re-apply for a period of 
one year unless there are material changes in meeting the 
qualifications.) or,
    (b) Poses a risk of harm to the personal safety of Department of 
State or other Governmental personnel or to Government property; or
    (c) Engages or engaged in conduct which there are reasonable grounds 
to believe might violate federal or state law or Department of State 
regulations.
    (d) Has been convicted of a felony (or a crime in a foreign country 
that would be considered a felony if it were committed in the United 
States).
    (e) Fails to claim an approved authorization form for a State 
Department press building pass after notification by the Office of Press 
Relations following a period of three (3) months.

[49 FR 4465, Feb. 7, 1984, as amended at 54 FR 1687, Jan. 15, 1989]



Sec. 9b.7  Procedures for denial, revocation, or non-renewal of Department of 

State press building passes.

    (a) If the Director of the Office of Press Relations, Department of 
State, anticipates, after consultation with the Office of the Legal 
Adviser, that in applying the standard set forth in Sec. 9b.6 a 
Department of State press building pass might be denied, revoked or not 
renewed, the media correspondent or technician will be notified in 
writing by the Director of the basis for the proposed denial in as much 
detail as the security of any confidential source of information will 
permit. This notification will be sent by registered mail.
    (b) The notification of the proposed denial, revocation or non-
renewal sent to the correspondent will also contain a statement advising 
the correspondent of his or her right to respond to the proposed denial 
and to rebut any factual basis supporting the proposed denial.
    (c) The correspondent shall be allowed thirty (30) days from the 
date of the mailing of the proposed denial, revocation or non-renewal 
notification to respond in writing. The response shall consist of any 
explanation or rebuttal deemed appropriate by the correspondent and will 
be signed by the correspondent under oath or affirmation.
    (d) If the correspondent is unable to prepare a response within 30 
days, an extension for one additional 30-day period will be granted upon 
receipt of the correspondent's written request for such an extension.
    (e) At the time of the filing of the media correspondent's or 
technician's written response to the notification of the proposed 
denial, revocation or non-renewal, the correspondent or technician may 
request, and will be granted, the opportunity to make a personal 
appearance before the Director of the Office of Press Relations, 
Department of State, for the purpose of personally supporting his/her 
eligibility for a press pass and to rebut or explain the factual basis 
for the proposed denial. The Director shall exercise, in consultation 
with the Bureau of Diplomatic Security and the Office of the Legal 
Adviser, final review authority in the matter. The correspondent or 
technician may be represented by counsel during this appearance.
    (f)(1) On the basis of the correspondent's or technician's written 
and personal response and the factual basis for the proposed denial, 
revocation or non-renewal, the Director of the Office of Press 
Relations, Department of State, will consult with the Bureau of 
Diplomatic Security and the Office of the Legal Adviser to determine 
whether or not further inquiry or investigation concerning the issues 
raised is necessary.

[[Page 36]]

    (2) If a decision is made that no such inquiry is necessary, a final 
decision will be issued in conformity with paragraph (g) of this 
section.
    (3) If a decision is made that such further inquiry is necessary, 
the Director of the Office of Press Relations of the Department of 
State, the Bureau of Diplomatic Security and the Office of the Legal 
Adviser will conduct such further inquiry as is deemed appropriate. At 
the Director's discretion the inquiry may consist of:
    (i) The securing of documentary evidence:
    (ii) Personal interviews:
    (iii) An informal hearing:
    (iv) Any combination of paragraphs (f)(3)(i) through (f)(3)(iii) of 
this section.
    (g) On the basis of the correspondent's or technician's written and 
personal response, the factual basis for the proposed denial and the 
additional inquiry provided for if such inquiry is conducted, the 
Director of the Office of Press Relations of the Department of State 
will consult with the Bureau of Diplomatic Security and the Office of 
the Legal Adviser and expeditiously reach a final decision in accordance 
with the standard set forth in Sec. 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 
Sec. 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.

[49 FR 4465, Feb. 7, 1984, as amended at 54 FR 1687, Jan. 17, 1989]



Sec. 9b.8  Term and renewal of Department of State press building passes.

    (a) Department of State press building passes for U.S. citizens are 
issued with three years' validity. Subject to positive completion of an 
international background check, passes for non-U.S. citizens are issued 
with one year's validity and may be renewed for three years. 
Notwithstanding its initial validity, any press building pass that has 
not been used for a twelve-month period, as recorded by the Bureau of 
Diplomatic Security's turnstyle entry devices, will become invalid at 
the end of that twelve-month period.
    (b) For any valid passes issued before October 1, 1995, notification 
shall be sent by the Department of State to the holder of the pass that 
the pass has become invalid by reason of lack of use for 12-month 
period. However, failure of the holder for any reason to receive such a 
notification shall not affect the invalidity of the pass. Anyone whose 
pass has become invalid may apply for a new pass in accordance with 
Sec. Sec. 9b.2 through 9b.5.

[61 FR 3800, Feb. 2, 1996]

[[Page 37]]



                         SUBCHAPTER B_PERSONNEL



PART 11_APPOINTMENT OF FOREIGN SERVICE OFFICERS--Table of Contents




Sec.
11.1 Junior Foreign Service officer career candidate appointments.
11.2 Written examination for appointment to class 7 or 8.
11.3 Oral examination for appointment to class 7 or 8.
11.4 Medical examination for appointment to class 7 or 8.
11.5 Certification for appointment to class 7 or 8.
11.6 Final Review Panel.
11.7 Termination of eligibility.
11.8 Travel expenses of candidates.
11.10 Mid-level Foreign Service officer career candidate appointments. 
          [Reserved]
11.11 Mid-level Foreign Service officer career candidate appointments.
11.20 Foreign Service specialist career candidate appointments.
11.30 Senior Foreign Service officer career candidate and limited non-
          career appointments.

    Authority: 22 U.S.C. 3926, 3941.



Sec. 11.1  Junior Foreign Service officer career candidate appointments.

    (a) General considerations--(1) Authority. 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.
    (2) Veterans' preference. 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.
    (3) Policy. 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.
    (b) Written examination. The following regulations apply to the 
written examination.
    (1) Purpose. 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.
    (2) Eligibility. 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.
    (3) When and where given. The written examination will be given 
periodically, normally at least once a year, in designated cities in the 
United States and

[[Page 38]]

at Foreign Service posts, on dates established by the Board of Examiners 
and publicly announced.
    (4) Grading. 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.
    (c) Oral examination. The following regulations apply to the oral 
examination:
    (1) Purpose. 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.
    (2) Eligibility--(i) Through written examination. (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.
    (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.
    (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.
    (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.
    (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.
    (ii) Through affirmative action. 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

[[Page 39]]

and publicly announced, to determine those to be selected for the oral 
examination.
    (iii) Through the mustang program. (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: (1) 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; (2) submit an 
autobiography of approximately 1000 words; and (3) be recommended by a 
Qualifications Evaluation Panel of the Board of Examiners for selection 
for the oral examination.
    (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 Sec. 11.10).
    (iv) Through the upward mobility program. Admission to the oral 
examination through the Upward Mobility Program of the United States 
Information Agency is governed by procedures established by that agency.
    (3) When and where given. 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.
    (4) Examining panel. 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.
    (5) Grading. 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.
    (d) Background investigation. 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.
    (e) Medical examination--(1) Eligibility. Candidates who pass the 
oral examination, and their dependents, will be eligible for selection 
by the Board of Examiners for the medical examination.
    (2) Purpose. 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

[[Page 40]]

nature as to make it unlikely that they would be able to function on a 
worldwide basis.
    (3) Conduct. 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.
    (4) Determination. 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).
    (5) Waiver of worldwide availability requirement. 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.
    (f) Final review panel. 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.
    (g) Certification for appointment--(1) Eligibility. (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.
    (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.
    (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.
    (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.
    (2) Functional rank-order registers. 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

[[Page 41]]

each functional register will be made in rank order according to the 
needs of the relevant agency.
    (3) Special programs. (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.
    (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.
    (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.
    (4) Postponement of entrance on duty. Postponement of entrance on 
duty because of civilian Federal Government service abroad (to a maximum 
of 2 years of such service), including Peace Corps volunteer service, or 
required active regular or reserve military service (to a maximum of the 
limit of such required service), may be authorized by the Board.
    (5) Foreign language requirement. A candidate may be certified for 
appointment to classes FS-6, FS-5, or FS-4 without first having passed 
an examination in a foreign language, but the appointment will be 
subject to the condition that the newly appointed Career Candidate may 
not be 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.
    (h) Termination of eligibility--(1) Time limit. Candidates who have 
qualified but have not been appointed because of lack of openings will 
be removed from the rank-order register 18 months after the date of 
placement on the rank-order register. Time spent in civilian Federal 
Government service abroad (to a maximum of 2 years of such service), 
including Peace Corps volunteer service, 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.
    (2) Extension. The Board of Examiners may extend the eligibility 
period when such extension is, in its judgment, justified in the 
interest of the Foreign Service.
    (i) Travel expenses. 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.

(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)))

[48 FR 13162, Mar. 30, 1983, as amended at 67 FR 46109, July 12, 2002]



Sec. 11.2  Written examination for appointment to class 7 or 8.

    The Board of Examiners for the Foreign Service has established the 
following rules regarding the written examination:
    (a) When and where given. 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.
    (b) Designation to take written examination. No person will be 
permitted to take a written examination for appointment as a Foreign 
Service officer

[[Page 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.
    (c) Content. 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.
    (d) Grading. The several parts of the written examination are 
weighted in accordance with the rules established by the Board of 
Examiners.

(22 U.S.C. 1221 et seq.)

[37 FR 19356, Sept. 20, 1972, as amended at 38 FR 13640, May 24, 1973]



Sec. 11.3  Oral examination for appointment to class 7 or 8.

    The Board of Examiners for the Foreign Service has established the 
following rules regarding the oral examination:
    (a) When and where given. 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.
    (b) Eligibility. 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: Provided, 
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.
    (c) Examining process. (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.
    (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.
    (3) Grading: Candidates appearing for the oral examination will be 
graded

[[Page 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.
    (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.

(22 U.S.C. 1221 et seq.)

[37 FR 19356, Sept. 20, 1972, as amended at 38 FR 13640, May 24, 1973]



Sec. 11.4  Medical examination for appointment to class 7 or 8.

    The Board of Examiners for the Foreign Service has established the 
following rules regarding the medical examination of candidates.
    (a) A candidate graded ``recommended'' on the oral examination will 
be eligible for the physical examination.
    (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.
    (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.
    (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.

(22 U.S.C. 1221 et seq.)

[37 FR 19356, Sept. 20, 1972]



Sec. 11.5  Certification for appointment to class 7 or 8.

    (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.
    (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,

[[Page 44]]

within a specified period of time, adequate proficiency in a foreign 
language is achieved.

(22 U.S.C. 1221 et seq.)

[37 FR 19356, Sept. 20, 1972, as amended at 38 FR 13640, May 24, 1973]



Sec. 11.6  Final Review Panel.

    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.

(22 U.S.C. 1221 et seq.)

[37 FR 19356, Sept. 20, 1972]



Sec. 11.7  Termination of eligibility.

    (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: Provided, 
however, 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.
    (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.

(22 U.S.C. 1221 et seq.)

[37 FR 19356, Sept. 20, 1972]



Sec. 11.8  Travel expenses of candidates.

    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.

(22 U.S.C. 1221 et seq.)

[37 FR 19356, Sept. 20, 1972]



Sec. 11.10  Mid-level Foreign Service officer career candidate appointments. 

[Reserved]



Sec. 11.11  Mid-level Foreign Service officer career candidate appointments.

    (a) General considerations--(1) Authority. 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.
    (2) Veterans' preference. 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).

[[Page 45]]

    (3) Purpose and policy. 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 Sec. 11.30 (to be supplied). 
Appointments to Specialist occupational categories below the Senior 
Foreign Service are governed by Sec. 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.
    (4) Sources of candidates--(i) Department. 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.
    (ii) Other Federal Government agencies. 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.
    (iii) Other. Other candidates may be drawn from non-Government 
sources, including minority and women applicants for the Department's 
Mid-Level Affirmative Action Program.
    (b) Eligibility requirements--(1) Citizenship. Each person appointed 
as a Foreign Service mid-level career candidate must be a citizen of the 
United States.
    (2) Service. (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.
    (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.

[[Page 46]]

    (3) Age. 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.
    (4) Certification of need. 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.
    (c) Recruitment--(1) From within the Department. 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.
    (2) Other. 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.
    (d) Methods of application--(1) Forms. 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.
    (2) Qualifications evaluation panel. 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.

[[Page 47]]

    (e) Examination for mid-level appointment. 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.
    (1) Purpose. 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.
    (2) Class. 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.
    (3) Written examination. 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.
    (4) Oral examination--(i) Purpose. 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.
    (ii) When and where given. 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.
    (iii) Examining panel. 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.
    (iv) Content. 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.
    (v) Grading. 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.
    (5) Written essay. 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.
    (6) Other exercises. Candidates who take the oral examination also 
may be

[[Page 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.
    (7) Background investigation. 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.
    (8) Medical examination. 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.
    (9) Final review panel. 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.
    (10) Foreign language requirement. 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.
    (11) Certification for appointment--(i) Departmental employees. 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.
    (ii) Others. 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.
    (12) Termination of eligibility. 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.

(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)))

[48 FR 19702, May 2, 1983]



Sec. 11.20  Foreign Service specialist career candidate appointments.

    (a) General considerations. (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).

[[Page 49]]

    (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.
    (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 Sec. 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.
    (4) Veterans' preference shall apply to the selection and 
appointment of Foreign Service specialist career candidates.
    (b) Specialist career candidate appointments--(1) Certification of 
need. 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.
    (2) Eligibility. An applicant must be a citizen of the United States 
and at least 20 years of age. The minimum age for appointment as a 
career candidate is 21. 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.
    (3) Selection and initial screening. 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.
    (4) Oral examination. 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

[[Page 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.
    (5) Background investigation. 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.
    (6) Medical examination. 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.
    (7) Final review panel. 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.
    (c) Limited non-career appointments. 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-

[[Page 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.

(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)))

[48 FR 19704, May 2, 1983]



Sec. 11.30  Senior Foreign Service officer career candidate and limited non-

career appointments.

    (a) General considerations. (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.
    (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.
    (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.
    (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.)
    (b) Senior Career Candidate appointments--(1) Eligibility 
requirements. Senior Career Candidates must meet the following 
eligibility requirements:
    (i) Citizenship. Each person appointed as a Senior Career Candidate 
must be a citizen of the United States.
    (ii) Age. 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.
    (iii) Service. (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,

[[Page 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.
    (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.
    (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.
    (iv) Certification of need. 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.
    (2) Application. 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.
    (3) Qualifications evaluation panel. (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.
    (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.
    (4) Written examination. 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.
    (5) Oral examination--(i) Examining panel. 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

[[Page 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.
    (ii) Criteria. (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.
    (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.''
    (iii) Grading. 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.
    (6) Background investigation. 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.
    (7) Medical examination. 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.
    (8) Foreign language requirement. 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,

[[Page 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.
    (9) Final review panel. (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.
    (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.
    (10) Certification of appointment. 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.
    (c) Limited non-career appointments. (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 Sec. 
11.30(b)(1) (i) and (iv). The maximum age set forth in Sec. 
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 Sec. 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.
    (2) Prior to the expiration of their limited non-career senior 
appointments, if they meet all the eligibility requirements set forth in 
Sec. 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.
    (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.

[[Page 55]]

    (d) Reporting requirement. 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.

(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)))

[48 FR 38607, Aug. 25, 1983]



PART 12_COMPLAINTS AGAINST EMPLOYEES BY ALLEGED CREDITORS--Table of Contents




Sec.
12.1 No cognizance taken of complaint.
12.2 Claimants denied access to employees.



Sec. 12.1  No cognizance taken of complaint.

    The Department of State will take no cognizance of a complaint 
against an employee by an alleged creditor, so far as the complainant is 
concerned, beyond acknowledging receipt of his communication.

(Sec. 4, 63 Stat. 111, as amended; 22 U.S.C. 2658)

[22 FR 10789, Dec. 27, 1957]



Sec. 12.2  Claimants denied access to employees.

    Persons claiming to be creditors or collectors of debts or claims 
will be denied access to employees for the purpose of presenting or 
collecting claims during the hours set apart for the transaction of 
public business or while the employees concerned are on duty.

(Sec. 4, 63 Stat. 111, as amended; 22 U.S.C. 2658)

[22 FR 10789, Dec. 27, 1957]



PART 13_PERSONNEL--Table of Contents




Sec.
13.1 Improper exaction of fees.
13.2 Embezzlement.
13.3 Liability for neglect of duty or for malfeasance generally; action 
          on bond; penalty.
13.4 False certificate as to ownership of property.

    Authority: Sec. 302, 60 Stat. 1001; 22 U.S.C. 842.

    Source: 22 FR 10789, Dec. 27, 1957, unless otherwise noted.



Sec. 13.1  Improper exaction of fees.

    Any consular officer who collects, or knowingly allows to be 
collected, for any services any other or greater fees than are allowed 
by law for such services, shall, besides his or her liability to refund 
the same, be liable to pay to the person by whom or in whose behalf the 
same are paid, treble the amount of the unlawful charge so collected, as 
a penalty. The refund and penalty may be recovered with costs, in any 
proper form of action, by such person for his or her own use. The amount 
of such overcharge and penalty may at the discretion of the Secretary of 
the Treasury be ordered withheld from the compensation of such officer 
for payment to the person entitled to the same (22 U.S.C. 1189).
    Note: 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 Sec. 22.4, Refund of fees of this chapter.

(22 U.S.C. 2658 and 3926)

[22 FR 10789, Dec. 27, 1957, as amended at 49 FR 16989, Apr. 23, 1984]



Sec. 13.2  Embezzlement.

    Every consular officer who shall receive money, property, or effects 
belonging to a citizen of the United States and shall not within a 
reasonable time after demand made upon him or her by the Secretary of 
State or by such citizen, his or her executor, administrator, or legal 
representative, account for and pay over all moneys, property, and 
effects, less his or her lawful fees, due to such citizen, shall be 
deemed guilty of embezzlement, and shall be punishable by imprisonment 
for not more than five years, and by a fine of not more than $2,000 (22 
U.S.C. 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

[[Page 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 Sec. 92.81 of this chapter.

(22 U.S.C. 2658 and 3926)

[22 FR 10789, Dec. 27, 1957, as amended at 49 FR 16989, Apr. 23, 1984]



Sec. 13.3  Liability for neglect of duty or for malfeasance generally; action 

on bond; penalty.

    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).

(22 U.S.C. 2658 and 3926)

[22 FR 10789, Dec. 27, 1957, as amended at 49 FR 16989, Apr. 23, 1984]



Sec. 13.4  False certificate as to ownership of property.

    If any consul of vice consul falsely and knowingly certifies that 
property belonging to foreigners is property belonging to citizens of 
the United States, he or she shall be punishable by imprisonment for not 
more than three years, and by a fine of not more than $10,000 (22 U.S.C. 
1200).

(22 U.S.C. 2658 and 3926)

[22 FR 10789, Dec. 27, 1957, as amended by Dept. Reg. 108.838, 49 FR 
16989, Apr. 23, 1984]



PART 16_FOREIGN SERVICE GRIEVANCE SYSTEM--Table of Contents




Sec.
16.1 Definitions.
16.2 General provisions.
16.3 Access to records.
16.4 Time limits for grievance filing.
16.5 Relationship to other remedies.
16.6 Security clearances.
16.7 Agency procedures.
16.8 Agency review.
16.9 Records.
16.10 Foreign Service Grievance Board.
16.11 Grievance Board consideration of grievances.
16.12 Hearing.
16.13 Decisions.
16.14 Reconsideration of a grievance.
16.15 Judicial review.

    Authority: 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).

    Source: 41 FR 13912, Apr. 1, 1976, unless otherwise noted.



Sec. 16.1  Definitions.

    (a) Act means the Foreign Service Act of 1946, as amended.
    (b) Grievant means any officer or employee of the Service who is a 
citizen of the United States; or for purposes of paragraphs (c) (7) and 
(8) of this section, a former officer or employee of the Service; or in 
the case of death of the officer or employee, a surviving spouse or 
dependent family member of the officer or employee.

[[Page 57]]

    (c) Grievance means any act or condition subject to the control of 
the Foreign Affairs agencies (the Department of State, the Agency for 
International Development, or the U.S. Information Agency) which is 
alleged to deprive the grievant of a right or benefit authorized by law 
or regulation or is otherwise a source of concern or dissatisfaction to 
the grievant, including, but not limited to the following:
    (1) Complaints against separation of an officer or employee 
allegedly contrary to law or regulation or predicated upon alleged 
inaccuracy (including inaccuracy resulting from omission or any relevant 
and material document), error, or falsely prejudicial character of any 
part of the grievant's official personnel record;
    (2) Other alleged violation, misinterpretation, or misapplication of 
applicable law, regulation, or published policy affecting the terms and 
conditions of the grievant's employment or career status;
    (3) Allegedly wrongful disciplinary action against an employee 
constituting a reprimand or suspension from official duties;
    (4) Dissatisfaction with any matter subject to the control of the 
agency with respect to the grievant's physical working environment;
    (5) Alleged inaccuracy, error, or falsely prejudicial material in 
the grievant's official personnel file;
    (6) Action alleged to be in the nature of reprisal or other 
interference with freedom of action in connection with an employee's 
participation under these grievance procedures;
    (7) When the grievant is a former officer who was involuntarily 
retired pursuant to sections 633 and 634 of the Act within 6 years prior 
to December 1, 1975, ``grievance'' shall mean a complaint that such 
involuntary retirement violated applicable law or regulation effective 
at the time of the retirement or that the involuntary retirement was 
predicated directly upon material contained in the grievant's official 
personnel file alleged to be erroneous or falsely prejudicial in 
character; and
    (8) When the grievant is a former officer or employee or a surviving 
spouse or dependent family member of a former officer or employee, 
``grievance'' shall mean a complaint that an allowance or other 
financial benefit has been denied arbitrarily, capriciously or contrary 
to applicable law or regulation.
    (d) Grievance does not include the following:
    (1) Complaints against individual assignment or transfers of Foreign 
Service officers or employees, which are ordered in accordance with law 
and regulation (see also paragraph (c)(2) of this section);
    (2) Judgments of Selection Boards rendered pursuant to section 623 
of the Act, or of equivalent bodies, in ranking Foreign Service officers 
and employees for promotion on the basis of merit, or judgments in 
examinations prescribed by the Board of Examiners pursuant to section 
516 or 517 of the Act (see also paragraph (c)(2) of this section);
    (3) Termination of time-limited appointments pursuant to 22 U.S.C. 
929 and 1008, and the pertinent regulations prescribed by the employing 
agency (see also paragraph (c)(2) of this section);
    (4) Any complaints or appeals for which a specific statutory appeals 
procedure exists (see appendix A for examples).

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 (Sec. 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.
    (e) Employee organization means any employee organization accorded 
recognition as the excusive employee representative pursuant to 
Executive Order 11636 dated December 17, 1971.
    (f) Grievance Board or Board means the full Foreign Service 
Grievance Board, or a Panel or member thereof, as appropriate.
    (g) Party means the grievant or the Foreign Affairs agency having 
control

[[Page 58]]

over the act or condition forming the subject matter of the grievance.
    (h) Bureau means equivalent organizational elements in State and 
USIA, and includes offices in AID.
    (i) Days means calendar days.



Sec. 16.2  General provisions.

    (a) Statement of purpose. These regulations establish procedures as 
required by law to provide Foreign Service officers and employees (and 
their survivors) of the Foreign Affairs agencies, a grievance procedure 
to insure a full measure of due process, and to provide for the just 
consideration and resolution of grievances of such officers, employees, 
and survivors. No regulation promulgated in this part shall be 
interpreted or applied in any manner which would alter or abridge the 
provisions of the due process established by the Congress in Pub. L. 94-
141, 22 U.S.C. 1037, section 691.
    (b) Discussion of complaints. (1) Every effort should be made to 
settle any employee complaint informally, promptly, and satisfactorily.
    (2) Supervisors and other responsible officers should encourage 
employees to discuss complaints with them and should respond in a timely 
manner to resolve the complaints.
    (3) An employee initially should discuss a complaint with the 
employee's current supervisor or with the responsible officer who has 
immediate jurisdiction over the complaint to give that person an 
opportunity to resolve the matter, before further steps are taken under 
these procedures.
    (c) Guidance. Nothing in these procedures prevents a grievant from 
seeking guidance from any official who might be helpful respecting the 
submission of a grievance or its resolution.
    (d) Freedom of action. (1) Any grievant, witness, representative or 
other person involved in a proceeding hereunder shall be free from any 
restraint, interference, coercion, harassment, discrimination, or 
reprisal in those proceedings or by virtue of them. The Foreign Affairs 
agencies recognize their obligation to insure compliance with this 
section. Any person involved or having immediate knowledge of any 
alleged breach of this section should call it to the attention of the 
pertinent foreign affairs agency through appropriate channels for 
corrective action as necessary. Normally such allegations should be 
brought to the attention of the senior agency official at the post; and 
at Washington, DC, to the Director, Grievance Staff for State; Chief, 
Employee Relations Branch for AID and Chief, Employee-Management 
Relations Division for USIA.
    (2) The grievant has the right to a representative of the grievant's 
own choosing at every stage of the proceedings. The grievant and repre- 
sentative(s) who are under the control, supervision, or responsibility 
of the Foreign Affairs agencies shall be granted reasonable periods of 
administrative leave to prepare, to be present, and to present the 
grievance.
    (3) Any witness under the control, supervision, or responsibility of 
a Foreign Affairs agency shall be granted reasonable periods of 
administrative leave to appear and testify at any such proceeding.
    (4) The Foreign Service Grievance Board established hereunder shall 
have authority to ensure that no copy of the determination of the agency 
head or designee to reject a Grievance Board recommendation, no notation 
of the failure of the Grievance Board to find for the grievant, and no 
notation that a proceeding is pending or has been held, shall be entered 
in the personnel records of the grievant (unless by order of the 
Grievance Board as a remedy for the grievance) or those of any other 
officer or employee connected the grievance. The Foreign Affairs 
agencies shall maintain grievance records under appropriate safeguards 
to preserve confidentiality (Sec. 16.9).



Sec. 16.3  Access to records.

    (a) Grievance Board records. The grievant and the grievant's 
representative shall have access to the record of proceedings, including 
the decision of the Board.
    (b) Agency records. (1) In considering the validity of a grievance, 
the Grievance Board shall have access, to the extent permitted by law, 
to any agency record considered by the Board to be relevant to the 
grievant and the subject matter of the grievance.

[[Page 59]]

    (2) The agency shall, subject to applicable law, promptly furnish 
the grievant any agency record which the grievant requests to 
substantiate the grievance and which the agency or the Grievance Board 
determines is relevant and material to the proceeding. When deemed 
appropriate by the agency or the Board, a grievant may be supplied with 
only a summary of extract of classified material. If a request by a 
grievant for a document is denied prior to or during the agency's 
consideration of a grievance, such denial may be raised by the grievant 
as an integral part of the grievance before the Board.
    (3) These regulations do not require disclosure of any official 
agency record to the Grievance Board or a grievant where the head of 
agency or deputy determines in writing that such disclosure whould 
adversely affect the foreign policy or national security of the United 
States.



Sec. 16.4  Time limits for grievance filing.

    (a) A grievance concerning a continuing practice or condition may be 
presented at any time if its adverse effect is presently continuing. 
Documents contained in official employee personnel files, for example, 
shall be deemed to constitute a continuing condition.
    (b) Subject to paragraph (a) of this section, a grievance under 
these regulations is forever barred, and the Grievance Board shall not 
consider or resolve the grievance, unless the grievance is presented 
within a period of 3 years after the occurrence or occurrences giving 
rise to the grievance, except that if the grievance arose earlier than 2 
years prior to the effective date of these regulations, the grievance 
shall be so barred, and no considered and resolved, unless it is 
presented within a period of 2 years after the effective date of these 
regulations, There shall be excluded from the computation of any such 
period any time during which the grievant was unaware of the grounds 
which are the basis of the grievance and could not have discovered such 
grounds if the grievant had exercised, as determined by the Grievance 
Board, reasonable diligence.
    (c) A grievance shall be deemed presented to the responsible 
official (Sec. 16.7(b)), transmitted to post or bureau (Sec. 16.7(c)) 
submitted for agency review (Sec. 16.8) or filed with the Grievance 
Board Sec. 16.11(a):
    (1) On the date of its dispatch by telegram, registered or certified 
mail, or receipted mail, in a diplomatic pouch;
    (2) On the date of its arrival at the appropriate office, if 
delivered by any other means.



Sec. 16.5  Relationship to other remedies.

    (a) A grievant may not file a grievance under these procedures if 
the grievant has formally requested, prior to filing a grievance, that 
the matter or matters which are the basis of the grievance be considered 
or resolved and relief be provided, under another provision of law, 
regulation, or executive order, and the matter has been carried to final 
decision thereunder on its merits or is still under consideration.
    (b) If a grievant is not prohibited from filing a grievance under 
these regulations by paragraph (a) of this section, the grievant may 
file under these regulations notwithstanding the fact that such 
grievance may be eligible for consideration, resolution, and relief 
under a regulation or executive order other than under these 
regulations, but such election of remedies shall be final upon the 
acceptance of jurisdiction by the Board.



Sec. 16.6  Security clearances.

    The agencies shall use their best endeavors to expedite security 
clearances whenever necessary to ensure a fair and prompt investigation 
and hearing.



Sec. 16.7  Agency procedures.

    (a) Initial consideration. (1) Grievances shall be considered 
through the steps provided in this section before they are filed with 
the Grievance Board.
    (2) During the pendency of agency procedures under this section, the 
grievant may request a suspension of the proposed action of the 
character of separation or termination of the grievant, disciplinary 
action against the grievant, or recovery from the grievant of alleged 
overpayment of salary, expenses or allowances, which is related to the 
grievance. The request must be

[[Page 60]]

in writing and addressed to the responsible official of the agencies, as 
designated in Sec. 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 Sec. 16.11, 
to permit the grievant to file a grievance with the Board, and to 
request interim relief under paragraph (c) of Sec. 16.11. If a request 
is denied, the agency shall provide the grievant in writing the reason 
for denial. Nothing in these regulations shall be deemed to preclude an 
employee from requesting the suspension of any proposed action.
    (b) Consideration by responsible officer. (1) While every effort 
should be made to resolve a complaint by an initial discussion between 
an employee and the supervisor or responsible officer, an employee may 
present the complaint as a grievance by submitting it in writing, to 
that person. (The term ``responsible officer'' as used herein includes 
any appropriate officer who has immediate jurisdiction over the 
complaint.) The presentation shall include a description of the act or 
condition which is the subject of the grievance; its effect on the 
grievant; any provision of law, regulation, or agency policy which the 
grievant may believe was violated or misapplied; any documentary 
evidence readily available to the grievant on which the grievance rests; 
the identity of individuals having knowledge of relevant facts; and a 
statement of the remedial action requested.
    (2) The responsible officer, whenever possible, shall use 
independent judgment in deciding whether the grievance is meritorious 
and what the resolution of it should be. Within 15 days from receipt of 
the written grievance, the responsible officer shall provide the 
grievant with a written response, which shall include a statement of any 
proposed resolution of the grievance.
    (3) If the response denies in whole or in part the remedial action 
requested, such response shall notify the grievant of the time within 
which to appeal the decision, and identity of the senior official, or 
designee, to whom the appeal should be addressed. In those cases in 
which the senior official, or designee, is the responsible officer to 
whom the grievance was initially presented or has participated in the 
decision process and has formally approved the written response of the 
responsible officer, the grievant shall be so notified and advised that 
the grievance may be submitted directly to the agency for review under 
Sec. 16.8.
    (c) Bureau or post review. (1) If the responsible officer's written 
response does not resolve the grievance to the grievant's satisfaction, 
within 10 days of receiving it (or, if no response is received, within 
25 days after first presenting the grievance), the grievant may pursue 
the grievance by transmitting it in writing to the senior official, or 
the designee in the bureau or post which has authority to resolve the 
grievance. The written transmission shall include all the information 
required by paragraph (b)(1) of this section and copies of any 
correspondence under paragraphs (b) (2) and (3) of this section.
    (2) Within 15 days from receipt of the grievance that official shall 
provide the grievant with a written decision, including any proposed 
resolution of the grievance. If the decision denies in whole or in part 
the remedial action requested, the communication shall notify the 
grievant of the time within which to submit the grievance for agency 
review and the identity of the appropriate agency official to whom the 
grievance should be addressed.



Sec. 16.8  Agency review.

    (a) Submission. (1) An employee may submit the grievance for agency 
review if the grievance (i) is not within the jurisdiction of a post or 
bureau, or (ii) the grievance has been considered but not resolved to 
the grievant's satisfaction within the post or bureau as provided in 
Sec. 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

[[Page 61]]

has control of the act or condition which is the subject of the 
grievance.
    (2) Responsible officials. The responsible officials of the agencies 
are the Deputy Assistant Secretary for Personnel (State), the Director 
of Personnel and Manpower (AID), and the Chief, Employee-Management 
Relations Division (USIA).
    (3) Contents. (i) A request for agency review shall include a 
description of the act or condition which is the subject of the 
grievance; its effect on the grievant; any provision of law, regulation 
or agency policy which the grievant may believe was violated or 
misapplied; copies of any correspondence under Sec. 16.7(a), any 
documentary evidence readily available to the grievant on which the 
grievance rests; the identity of individuals having knowledge of 
relevant facts; and a statement of the remedial action requested.
    (ii) The responsible official shall review the grievance on the 
basis of available documentary evidence, and, in that official's 
discretion, interview persons having knowledge of the facts. The agency 
review shall be completed and its decision dispatched within 90 days 
from the date of the initial written presentation of the grievance. The 
grievant shall be informed in writing of the findings of the responsible 
official and any proposed resolution of the grievance. The communication 
shall also include the time within which the grievant may file a 
grievance with the Grievance Board and the appropriate procedure to be 
followed in this respect.



Sec. 16.9  Records.

    All official records concerning agency consideration of grievances, 
except those appropriate to implementation of decisions favorable to 
grievants, shall be kept separate from the official personnel record of 
the grievant and any other individuals connected with the grievance, and 
shall not be accessible to agency personnel other than the grievant, the 
grievant's representative, and those responsible for consideration of 
grievances.



Sec. 16.10  Foreign Service Grievance Board.

    (a) Establishment and composition. There is hereby established a 
Foreign Service Grievance Board for the Department of State, the Agency 
for International Development and the U.S. Information Agency to 
consider and resolve grievances under these procedures.
    (b) The Grievance Board shall consist of not less than 5 members nor 
more than 15 members (including a chairperson) who shall be independent, 
distinguished citizens of the United States, well known for their 
integrity, who are not active officers, employees, or consultants of the 
Foreign Affairs agencies (except consultants who served as public 
members of the Interim Grievance Board previously established under 
section 660, Volume 3, Foreign Affairs Manual) but may be retired 
officers or employees. On its initial establishment, the Board shall 
consist of 15 members including chairperson.
    (c) The Board may act by or through panels or individual members 
designated by the chairperson, except that hearings within the 
continental United States shall be held by panels of at least three 
members unless the parties agree otherwise. Reference in these 
regulations to the Grievance Board shall be considered to be reference 
to a panel or member of the Grievance Board where appropriate. All 
members of the Grievance Board shall act as impartial individuals in 
considering grievances.
    (d) The members of the Grievance Board, including the chairperson, 
shall be appointed by the Secretary of State after being designated by 
the written agreement of the Foreign Affairs agencies and the employee 
organization.
    (e) The Board chairperson and other members shall be appointed for 
terms of 2 years, subject to renewal upon the agreement of the Foreign 
Affairs agencies and the employee organization; except that the terms of 
7 of the initially appointed members shall expire at the end of one 
year.
    (f) Any vacancies shall be filled by the Secretary of State upon the 
nomination by the Board following the

[[Page 62]]

agreement of the agencies and the employee organization.
    (g) Compensation. Members, including the chairperson, who are not 
employees of the Federal Government shall receive compensation for each 
day they are performing their duties as members of the Grievance Board 
(including travel time) at the daily rate paid an individual at GS-18 
level of the General Schedule under section 5332 of title 5 of the 
United States Code.
    (h) Removal. Grievance Board members shall be subject to removal by 
the Secretary of State for corruption, other malfeasance, or the 
demonstrated incapacity to perform their functions. No member shall be 
removed from office until after the Board of the Foreign Service has 
conducted a hearing and made its recommendations in writing to the 
Secretary of State, except where the right to a hearing is waived in 
writing. The Board of the Foreign Service shall provide a member with 
full notice of the charges against that member, and afford a member the 
right to counsel, to examine and cross-examine witnesses, and to present 
documentary evidence.
    (i) Grievance Board procedures. In accordance with part J, title VI 
of the Act, the Board may adopt regulations concerning the organization 
of the Board and such other regulations as mey be necessary to govern 
its proceedings.
    (j) Board facilities and staff support. The Grievance Board may 
obtain facilities, services, and supplies through the general 
administrative services of the Department of State. All expenses of the 
Board, including necessary costs of the grievant's travel and travel-
related expenses, shall be paid out of funds appropriated to the 
Department for obligation and expenditure by the Board. At the request 
of the Board, officers and employees on the rolls of the Foreign Affairs 
agencies may be assigned as staff employees to the Grievance Board. 
Within the limit of appropriated funds, the Board may appoint and fix 
the compensation of such other employees as the Board considers 
necessary to carry out its functions. The officers and employees so 
appointed or assigned shall be responsible solely to the Grievance Board 
and the Board shall prepare the performance evaluation reports for such 
officers and employees. The records of the Grievance Board shall be 
maintained by the Board and shall be separate from all other records of 
the Foreign Affairs agencies.



Sec. 16.11  Grievance Board consideration of grievances.

    (a) Filing of grievance. A grievant whose grievance is not resolved 
satisfactorily under agency procedures (Sec. 16.7) shall be entitled to 
file a grievance with the Grievance Board no later than 60 days after 
receiving the agency decision. In the event that an agency has not 
provided its decision within 90 days of presentation, the grievant shall 
be entitled to file a grievance with the Grievance Board no later than 
150 days after the date of presentation to the agency. The Board may 
extend or waive, for good cause, the time limits stated in this section.
    (b) Exhaustion of agency procedures. In the event that the Grievance 
Board finds that a grievance has not been presented for agency 
consideration or that a grievance has been expanded or modified to 
include materially different elements, the Board shall return the 
grievance to the official responsible for final agency review unless the 
agency waives any objection to Board consideration of the grievance 
without such review.
    (c) Prescription of interim relief. If the Grievance Board 
determines that the agency is considering any action of the character of 
separation or termination of the grievant, disciplinary action against 
the grievant, or recovery from the grievant of alleged overpayment of 
salary, expenses, or allowances, which is related to a grievance pending 
before the Board, and that such action should be suspended, the agency 
shall suspend such action until the Board has ruled upon the grievance. 
Notwithstanding such suspension of action, the head of the agency 
concerned or a chief of mission or principal officer may exclude an 
officer or employee from official premises or from the performance of 
specified duties when such exclusion is determined in writing to be 
essential to the functioning of the post or office

[[Page 63]]

to which the officer or employee is assigned.
    (d) Inquiry into grievances. The Board shall conduct a hearing at 
the request of a grievant in any case which involves disciplinary 
action, or a grievant's retirement from the Service under sections 633 
and 634 of the Act, or which in the judgment of the Board can best be 
resolved by a hearing or by presentation of oral argument. In those 
grievances in which the Board holds no hearing, the Board shall offer to 
each party the opportunity to review and to supplement, by written 
submission, the record of proceedings prior to its decision.



Sec. 16.12  Hearing.

    (a) Appearances and representation. The grievant, a reasonable 
number of representatives of the grievant's own choosing, and a 
reasonable number of agency representatives, are entitled to be present 
at the hearing. The Grievance Board may, after considering the views of 
the parties and any other individuals connected with the grievance, 
decide that a hearing should be open to others.
    (b) Conduct of hearing. (1) Testimony at a hearing shall be given by 
oath or affirmation which any Board member or person designated by the 
Board shall have authority to administer.
    (2) Each party shall be entitled to examine and cross-examine 
witnesses at the hearing or by deposition, and to serve interrogatories 
answered by the other party unless the Board finds such interrogatory 
irrelevant or immaterial. Upon request of the Board, or upon a request 
of the grievant deemed relevant and material by the Board, and agency 
shall promptly make available at the hearing or by deposition any 
witness under its control, supervision or responsibility, except that if 
the Board determines that the presence of such witness at the hearing is 
required for just resolution of the grievance, then the witness shall be 
made available at the hearing, with necessary costs and travel expenses 
provided by the agency.
    (3) During any hearings held by the Board, any oral or documentary 
evidence may be received but the Board shall exclude any irrelevant, 
immaterial, or unduly repetitious evidence normally excluded in hearings 
conducted under the Administrative Procedures Act (5 U.S.C. 556).
    (4) A verbatim transcript shall be made of any hearing and shall be 
part of the record of proceedings.



Sec. 16.13  Decisions.

    (a) Upon completion of the hearing or the compilation of such record 
as the Board may find appropriate in the absence of a hearing, the board 
shall expeditiously decide the grievance on the basis of the record of 
proceedings. In each case the decision of the Board shall be in writing, 
shall include findings of fact, and shall include the reasons for the 
Board's decision.
    (b) If the Grievance Board finds that the grievance is meritorious, 
the Board shall have the authority within the limitations of the 
authority of the head of the agency, to direct the agency:
    (1) To correct any official personnel record relating to the 
grievant which the Board finds to be inaccurate, erroneous, or falsely 
prejudicial;
    (2) To reverse and administrative decision denying the grievant 
compensation including related within-class salary increases pursuant to 
section 625 of the Act or any other perquisite of employment authorized 
by law or regulation when the Board finds that such denial was 
arbitrary, capricious, or contrary to law or regulation;
    (3) To retain in service and employee whose termination would be in 
consequence of the matter by which the employee is aggrieved;
    (4) To reinstate with back pay, under applicable law and 
regulations, an employee where it is clearly established that the 
separation or suspension without pay of the employee was unjustified or 
unwarranted;
    (5) To order an extension of the time of an employee's eligibility 
for promotion to a higher class where the employee suffered career 
impairment in consequence of the matter by which the employee is 
aggrieved;
    (6) To order that an employee be provided with facilities relating 
to the physical working environment which

[[Page 64]]

the employee has been denied arbitrarily, capriciously or in violation 
of applicable regulation.
    (c) Such orders of the Board shall be final, subject to judicial 
review as provided for in section 694 of the Act, except that 
reinstatement of former officers who have filed grievances under Sec. 
16.1(c)(7) shall be presented as Board recommendations, the decision on 
which shall be subject to the sole discretion of the agency head or 
designee, who shall take into account the needs of the Service in 
deciding on such recommendations, and shall not be subjected to judicial 
review under section 694 of the Act. The reason(s) for the agency head's 
(or designee's) decision will be conveyed in writing to the Board and 
the grievant.
    (d) If the Board finds that the grievance is meritorious and that 
remedial action should be taken that directly relates to promotion or 
assignment of the grievant, or to other remedial action, including 
additional step increases, not provided for in paragraph (b) of this 
section, or if the Board finds that the evidence before it warrants 
disciplinary action against any officer or employee, it shall make an 
appropriate recommendation to the head of the agency, and forward to the 
head of the agency the record of the Board's proceedings, including the 
transcript of the hearing, if any. The head of the agency (or designee, 
who shall not have direct responsibility for administrative management) 
shall make a written decision to the parties and to the Board on the 
Board's recommendation within 30 days from receipt of the 
recommendation. A recommendation of the Board may be rejected in part or 
in whole if the action recommended would be contrary to law, would 
adversely affect the foreign policy or security of the United States, or 
would substantially impair the efficiency of the Service. If the 
decision rejects the Board's recommendation in part or in whole, the 
decision shall state specifically any and all reasons for such action. 
Pending the decision, there shall be no ex parte communications 
concerning the grievance between the agency head, or designee, and any 
person involved in the grievance proceeding.



Sec. 16.14  Reconsideration of a grievance.

    A grievant whose grievance is found not to be meritorious by the 
Board may obtain reconsideration by the Board only upon presenting newly 
discovered or previously unavailable material evidence not previously 
considered by the Board and then only upon approval of the Board.



Sec. 16.15  Judicial review.

    Any aggrieved party may obtain judicial review of these regulations, 
and revisions thereto, and final actions of the agency head (or 
designee) or the Grievance Board hereunder, in the District Courts of 
the United States, in accordance with the standards set forth in chapter 
7 of title 5 of the United States Code. Section 706 of title 5 shall 
apply without limitation or exception.



PART 17_OVERPAYMENTS FROM THE FOREIGN SERVICE RETIREMENT AND DISABILITY FUND 

UNDER THE FOREIGN SERVICE RETIREMENT AND DISABILITY SYSTEM (FSRDS) AND THE 

FOREIGN SERVICE PENSION SYSTEM (FSPS)--Table of Contents




Sec.
17.1 General.
17.2 Conditions for waiver of recovery of an overpayment.
17.3 Fault.
17.4 Equity and good conscience.
17.5 Financial hardship.
17.6 Ordinary and necessary living expenses.
17.7 Waiver precluded.
17.8 Burdens of proof.
17.9 Procedures.

    Authority: 22 U.S.C. 4047(d); 22 U.S.C. 4071(b); 5 U.S.C. 8470(b); 5 
CFR 845.301-07.

    Source: 71 FR 16229, Mar. 31, 2006, unless otherwise noted.



Sec. 17.1  General.

    This part establishes procedures for notifying individuals of their 
rights if they have received an overpayment from the Foreign Service 
Retirement and Disability Fund under Chapter 8 of the Foreign Service 
Act of 1980, as amended, including their right to contest the 
determination that there has been an overpayment and the right to 
request a waiver of recovery of the

[[Page 65]]

overpayment. This part also provides the procedures for administrative 
determination of these rights and for appeals of negative 
determinations.



Sec. 17.2  Conditions for waiver of recovery of an overpayment.

    (a) Foreign Service Retirement and Disability System. Recovery of an 
overpayment from the Foreign Service Retirement and Disability Fund 
under the Foreign Service Retirement and Disability System may be waived 
pursuant to section 4047(d), of title 22, United States Code when the 
individual is without fault and recovery would be against equity and 
good conscience or administratively infeasible.
    (b) Foreign Service Pension System. Recovery of an overpayment from 
the Foreign Service Retirement and Disability Fund under the Foreign 
Service Pension System may be waived pursuant to section 4071(b) of 
title 22, United States Code and section 8470(b) of title 5, United 
States Code when the individual is without fault and recovery would be 
against equity and good conscience.
    (c) When it has been determined that the recipient of an overpayment 
is ineligible for waiver, the individual is nevertheless entitled to an 
adjustment in the recovery schedule if he or she shows that it would 
cause him or her financial hardship to make payment at the rate 
scheduled.



Sec. 17.3  Fault.

    A recipient of an overpayment is without fault if he or she 
performed no act of commission or omission that resulted in the 
overpayment. The fact that the Department of State or other agency may 
have been at fault in initiating an overpayment will not necessarily 
relieve the individual from liability.
    (a) Considerations. Pertinent considerations in finding fault are--
    (1) Whether payment resulted from the individual's incorrect but not 
necessarily fraudulent statement, which he/she should have known to be 
incorrect;
    (2) Whether payment resulted from the individual's failure to 
disclose material facts in his/her possession which he/she should have 
known to be material; or
    (3) Whether he/she accepted a payment which he/she knew or should 
have known to be erroneous.
    (b) Mitigation factors. The individual's age, physical and mental 
condition or the nature of the information supplied to him or her by the 
Department of State or a Federal agency may mitigate against finding 
fault if one or more contributed to his or her submission of an 
incorrect statement, a statement which did not disclose material facts 
in his or her possession, or his or her acceptance of an erroneous 
overpayment.



Sec. 17.4  Equity and good conscience.

    (a) Defined. Recovery is against equity and good conscience when--
    (1) It would cause financial hardship to the person from whom it is 
sought;
    (2) The recipient of the overpayment can show (regardless of his or 
her financial circumstances) that due to the notice that such payment 
would be made or because of the incorrect payment either he/she has 
relinquished a valuable right or changed positions for the worse; or
    (3) Recovery could be unconscionable under the circumstances.
    (b) [Reserved]



Sec. 17.5  Financial hardship.

    (a) Waiver of overpayment will not be allowed in any case prior to 
receipt and evaluation of a completed Statement of Financial Status, 
duly sworn by the recipient of the overpayment.
    (b) Financial hardship may be deemed to exist in, but not limited 
to, those situations where the recipient from whom collection is sought 
needs substantially all of his or her current income and liquid assets 
to meet current ordinary and necessary living expenses and liabilities.
    (1) Considerations. Some pertinent considerations in determining 
whether recovery would cause financial hardship are as follows:
    (i) The individual's financial ability to pay at the time collection 
is scheduled to be made.
    (ii) Income to other family member(s), if such member's ordinary and

[[Page 66]]

necessary living expenses are included in expenses reported by the 
individual.
    (c) Exemptions. Assets exempt from execution under State law should 
not be considered in determining an individual's ability to repay the 
indebtedness, rather primary emphasis shall be placed upon the 
individual's liquid assets and current income in making such 
determinations.



Sec. 17.6  Ordinary and necessary living expenses.

    An individual's ordinary and necessary living expenses include rent, 
mortgage payments, utilities, maintenance, food, clothing, insurance 
(life, health and accident), taxes, installment payments, medical 
expenses, support expenses when the individual is legally responsible, 
and other miscellaneous expenses which the individual can establish as 
being ordinary and necessary.



Sec. 17.7  Waiver precluded.

    (a) Waiver of an overpayment cannot be granted when:
    (1) The overpayment was obtained by fraud; or
    (2) The overpayment was made to an estate.
    (b) [Reserved]



Sec. 17.8  Burdens of proof.

    (a) Burden of the Department of State. The Bureau of Resource 
Management, Department of State, must establish by the preponderance of 
the evidence that an overpayment occurred.
    (b) Burden of individual. The recipient of an overpayment must 
establish by substantial evidence that he or she is eligible for waiver 
or an adjustment in the recovery schedule.



Sec. 17.9  Procedures.

    (a) Notice. The Bureau of Resource Management, Department of State, 
shall give written notification to any individual who has received an 
overpayment promptly by first-class mail to the individual at the 
individual's most current address in the records of the Bureau of 
Resource Management. The written notice shall inform the individual of:
    (1) The amount of the overpayment;
    (2) The cause of the overpayment;
    (3) The intention of the Department to seek repayment of the 
overpayment,
    (4) The date by which payment should be made to avoid the imposition 
of interest, penalties, and administrative costs;
    (5) The applicable standards for the imposing of interest, 
penalties, and administrative costs;
    (6) The department's willingness to discuss alternative payment 
arrangements and how the individual may offer to enter into a written 
agreement to repay the amount of the overpayment under terms acceptable 
to the Department; and
    (7) The name, address and telephone number of a contact person 
within the Bureau of Resource Management. The written notice also shall 
inform the individual of their right to contest the overpayment, their 
right to request a waiver of recovery of the overpayment, and the 
procedures to follow in case of such contest or request for waiver of 
recovery. The notification shall allow at least 30 days from its date 
within which the individual may contest in writing the overpayment or 
request a waiver of recovery, including with their submission all 
evidence and arguments in support of their position.
    (b) Administrative file. The Bureau of Resource Management will 
prepare an administrative file as a basis for determination in each case 
where an individual contests a claim to recover overpayment or requests 
waiver of recovery of the overpayment. On the basis of the 
administrative file, the Chief Financial Officer or his or her delegate, 
shall make the final administrative determination.
    (c) Additional information. At any time before the final 
administrative decision, the Department may request the individual to 
supplement his or her submission with additional factual information and 
may request that the individual authorize the Department of State to 
have access to bank and other financial records bearing on the 
application of these regulations. If the individual, without good cause 
shown, fails or refuses to produce the requested additional information 
or authorization, the Department of State is entitled to make adverse 
inferences with respect

[[Page 67]]

to the matters sought to be amplified, clarified, or verified.
    (d) Decision and right of appeal. The final administrative decision 
shall be reduced to writing and sent to the individual. If the decision 
is adverse to the individual, the notification of the decision shall 
include a written description of the individual's rights of appeal to 
the Foreign Service Grievance Board. The Foreign Service Grievance Board 
shall consider any appeal under this part in accordance with the 
regulations of the Board set forth in 22 CFR part 901.



PART 18_REGULATIONS CONCERNING POST EMPLOYMENT CONFLICT OF INTEREST--Table of 

Contents




                      Subpart A_General Provisions

Sec.
18.1 Scope.
18.2 Definitions.
18.3 Director General.
18.4 Records.

                       Subpart B_Applicable Rules

18.5 Interpretative standards; advisory opinions.

            Subpart C_Administrative Enforcement Proceedings

18.6 Authority to prohibit appearances.
18.7 Report of violation by a former employee.
18.8 Institution of proceeding.
18.9 Contents of complaint.
18.10 Service of complaint and other papers.
18.11 Answer.
18.12 Motions and requests.
18.13 Representation.
18.14 Hearing examiner.
18.15 Hearings.
18.16 Evidence.
18.17 Depositions.
18.18 Proposed findings and conclusions.
18.19 Decision of the hearing examiner.
18.20 Appeal to the Board of Appellate Review.
18.21 Decision of the Board of Appellate Review.
18.22 Notice of disciplinary action.

    Authority: 18 U.S.C. 207, as amended, 92 Stat. 1864.

    Source: 46 FR 2608, Jan. 12, 1981, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 18.1  Scope.

    This part contains rules governing disciplinary action against a 
former officer or employee of the Department of State, including the 
Foreign Service, because of a violation of the post employment conflict 
of interest prohibitions. Such disciplinary action may include 
prohibition from practice before the Department of State and any 
component thereof as defined in this part.



Sec. 18.2  Definitions.

    For the purpose of this part--
    (a) The term Department means the Department of State and includes 
the Foreign Service.
    (b) The term Director General means the Director General of the 
Foreign Service and Director of Personnel.
    (c) The term practice means any informal or formal appearance 
before, or, with the intent to influence, any oral or written 
communication to the Department on a pending matter of business on 
behalf of any other person (except the United States).



Sec. 18.3  Director General.

    The Director General shall institute and provide for the conduct of 
disciplinary proceedings involving former employees of the Department as 
authorized by 18 U.S.C. 207(j), and perform such other duties as are 
necessary or appropriate to carry out his/her functions under this part.



Sec. 18.4  Records.

    The roster of all persons prohibited from practice before the 
Department shall be available to public inspection at the Office of 
Director General. Other records may be disclosed upon specific request, 
in accordance with appropriate disclosure regulations of the Department.



                       Subpart B_Applicable Rules



Sec. 18.5  Interpretative standards; advisory opinions.

    (a) A determination that a former officer or employee of the 
Department violated 18 U.S.C. 207(a), (b) or (c) will be made in 
conformance with the

[[Page 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.
    (b) Former officers and employees of the Department wanting to know 
whether a proposed course of conduct would be in conformity with the Act 
or the interpretive regulations thereunder may contact the Assistant 
Legal Adviser for Management to request an advisory opinion.



            Subpart C_Administrative Enforcement Proceedings



Sec. 18.6  Authority to prohibit appearances.

    Pursuant to 18 U.S.C 207(j), if the Director General finds, after 
notice and opportunity for a hearing, that a former officer or employee 
of the Department has violated 18 U.S.C. 207(a), (b) or (c), the 
Director General in his/her discretion may prohibit that person from 
engaging in practice before the Department for a period not to exceed 
five years, or may take other appropriate disciplinary action.



Sec. 18.7  Report of violation by a former employee.

    (a) If an officer or employee of the Department has reason to 
believe that a former officer or employee of the Department has violated 
any provision of this part, or if any such officer or employee receives 
information to that effect, he/she shall promptly make a written report 
thereof, which report or a copy thereof shall be forwarded to the 
Director General. If any other person has information of such 
violations, he/she may make a report thereof to the Director General or 
to any officer or employee of the Department.
    (b) The Director General shall coordinate proceedings under this 
part with the Department of Justice in cases where it initiates criminal 
prosecution.



Sec. 18.8  Institution of proceeding.

    Whenever the Director General determines that there is sufficient 
reason to believe that any former officer or employee of the Department 
has violated 18 U.S.C. 207(a), (b) or (c), he/she may institute an 
administrative disciplinary proceeding. The proceeding may be for that 
person's suspension from practice before the Department or for some 
lesser penalty. The proceeding shall be instituted by a complaint which 
names the respondent and is signed by the Director General and filed in 
his/her office. Except in cases of willfulness, or where time, the 
nature of the proceeding, or the public interest does not permit, a 
proceeding will not be instituted under this section until facts or 
conduct which may warrant such action have been called to the attention 
of the proposed respondent in writing and he/she has been accorded the 
opportunity to provide his/her position on the matter.



Sec. 18.9  Contents of complaint.

    A complaint shall plainly and concisely describe the allegations 
which constitute the basis for the proceeding. A complaint shall be 
deemed sufficient if it fairly informs the respondent of the charges 
against him/her so that the respondent is able to prepare a defense. 
Written notification shall be given of the place and of the time within 
which the respondent shall file his/her answer, which time shall not be 
less than 15 days from the date of service of the complaint. Notice 
shall be given that a decision by default may be rendered against the 
respondent in the event he/she fails to file an answer.



Sec. 18.10  Service of complaint and other papers.

    (a) Complaint. The complaint or a copy thereof may be served upon 
the respondent by certified mail; by delivering it to the respondent or 
his/her attorney or agent of record either in person; or by leaving it 
at the office or place of business of the respondent, attorney or agent; 
in any other manner which has been agreed to by the respondent; or by 
first-class mail in case of a person resident abroad.
    (b) Service of papers other than complaint. Any paper other than the 
complaint may be served upon a respondent as provided in paragraph (a) 
of this section or by mailing the paper by first-class mail to the 
respondent at the last address known to the Director General, or by 
mailing the paper by first-class mail to the respondent's attorney or

[[Page 69]]

agent of record. Such mailing shall constitute complete service.
    (c) Whenever the filing of a paper is required or permitted in 
connection with a proceeding, and the place of filing is not specified 
by this subpart or by rule or order of the hearing examiner, the paper 
shall be filed with the Director General, Department of State, 
Washington, DC 20520. All papers shall be filed in duplicate.



Sec. 18.11  Answer.

    (a) Filing. The respondent's answer shall be filed in writing within 
the time specified in the complaint or notice of institution of the 
proceeding, unless on application the time is extended by the Director 
General. The answer shall be filed in duplicate with the Director 
General.
    (b) Contents. The answer shall contain a statement of facts which 
constitute the grounds of defense, and it shall specifically admit or 
deny each allegation set forth in the complaint. The respondent may also 
state affirmatively special matters of defense.
    (c) Failure to deny or answer allegations in the complaint. Every 
allegation in the complaint which is not denied in the answer shall be 
deemed to be admitted and may be considered as proved. Failure to file 
an answer within the time prescribed in the notice to the respondent, 
except as the time for answer is extended by the Director General shall 
constitute a waiver of hearing, and the Director General may make his/
her decision by default without a hearing or further procedure.



Sec. 18.12  Motions and requests.

    Motions and requests, including requests to intervene, may be filed 
with the Director General.



Sec. 18.13  Representation.

    A respondent or proposed respondent may appear in person or he/she 
may be represented by counsel or other representative. The Director 
General may be represented by an attorney or other employee of the 
Department.



Sec. 18.14  Hearing examiner.

    (a) After an answer is filed, if the Director General decides to 
continue the administrative disciplinary proceedings, he/she shall 
appoint a hearing examiner to conduct those proceedings under this part.
    (b) Authorities. Among other powers, the hearing examiner shall have 
authority, in connection with any proceeding assigned or referred to 
him/her, to do the following:
    (1) Take evidence under appropriate formalities;
    (2) Make rulings upon motions and requests;
    (3) Determine the time and place of hearing and regulate its course 
and conduct;
    (4) Adopt rules of procedure and modify the same from time to time 
as occasion requires for the orderly disposition of proceedings;
    (5) Rule upon offers of proof, receive relevant evidence, and 
examine witnesses;
    (6) Take or authorize the taking of depositions;
    (7) Receive and consider oral or written argument on facts or law;
    (8) Hold or provide for the holding of conferences for the 
settlement or simplification of the issues by consent of the parties;
    (9) Perform such acts and take such measures as are necessary or 
appropriate to the efficient conduct of any proceeding; and
    (10) Make initial decisions.



Sec. 18.15  Hearings.

    Hearings shall be stenographically recorded and transcribed and the 
testimony of witnesses shall be taken under oath or affirmation. 
Hearings will be closed unless an open hearing is requested by the 
respondent, except that if classified information or protected 
information of third parties is likely to be adduced at the hearing, it 
will remain closed. If either party to the proceeding fails to appear at 
the hearing, after due notice thereof has been sent to him/her, he/she 
shall be deemed to have waived the right to a hearing and the hearing 
examiner may make a decision against the absent party by default.



Sec. 18.16  Evidence.

    The rules of evidence prevailing in courts of law and equity are not 
controlling in hearings under this part.

[[Page 70]]

However, the hearing examiner shall exclude evidence which is 
irrelevant, immaterial, or unduly repetitious.



Sec. 18.17  Depositions.

    Depositions for use at a hearing may, with the consent of the 
parties in writing or the written approval of the hearing examiner, be 
taken by either the Director General or the respondent or their duly 
authorized representatives. Depositions may be taken upon oral or 
written interrogatories. There shall be at least 10 days written notice 
to the other party. The requirement of a 10-day written notice may be 
waived by the parties in writing. When a deposition is taken upon 
written interrogatories, any cross-examination shall be upon written 
interrogatories. Copies of such written interrogatories shall be served 
upon the other party with the notice, and copies of any written cross-
interrogation shall be mailed or delivered to the opposing party at 
least 5 days before the date of taking the depositions, unless the 
parties mutually agree otherwise. Expenses in the reporting of 
depositions shall be borne by the party at whose instance the deposition 
is taken.



Sec. 18.18  Proposed findings and conclusions.

    Except in cases where the respondent has failed to answer the 
complaint or where a party has failed to appear at the hearing, the 
hearing examiner, prior to making his/her decision, shall afford the 
parties a reasonable opportunity to submit proposed findings and 
conclusions and supporting reasons therefor.



Sec. 18.19  Decision of the hearing examiner.

    As soon as practicable after the conclusion of a hearing and the 
receipt of any proposed findings and conclusions timely submitted by the 
parties, the hearing examiner shall make the initial decision. The 
decision shall include
    (a) A statement of findings and conclusions, as well as the reasons 
or basis therefor, upon all the material issues of fact, law, or 
discretion presented on the record, and
    (b) An order of suspension from practice before the Department or 
other appropriate disciplinary action, or an order of dismissal of the 
complaint. The hearing examiner shall file the decision with the 
Director General and shall transmit a copy thereof to the respondent or 
his/her attorney of record. A party adversely affected by the decision 
shall be given notice of his or her right to appeal to the Board of 
Appellate Review (part 7 of this chapter) within 30 days from the date 
of the hearing examiner's decision.



Sec. 18.20  Appeal to the Board of Appellate Review.

    Within 30 days from the date of the hearing examiner's decision, 
either party may appeal to the Board of Appellate Review. The appeal 
shall be taken by filing notice of appeal, in triplicate, with the Board 
of Appellate Review, which shall state with particularity exceptions to 
the decision of the hearing examiner and reasons for such exceptions. If 
an appeal is by the Director General, he/she shall transmit a copy 
thereof to the respondent. Within 30 days after receipt of an appeal or 
copy thereof, the other party may file a reply brief, in triplicate, 
with the Board of Appellate Review. If the reply brief is filed by the 
Director General, he/she shall transmit a copy of it to the respondent. 
The Director General shall transmit the entire case record to the Board 
of Appellate Review within 30 days after an appeal has been taken.



Sec. 18.21  Decision of the Board of Appellate Review.

    The Board of Appellate Review shall decide the appeal on the basis 
of the record. The decision of the Board shall be final, and not subject 
to further administrative review. Copies of the Board's decision shall 
be forwarded promptly to the parties by the Board.



Sec. 18.22  Notice of disciplinary action.

    Upon the issuance of a final order suspending a former officer or 
employee from practice before the Department, the Director General shall 
give notice thereof to appropriate officers and employees of the 
Department. Officers and employees of the Department shall refuse to 
participate in any appearance by such former officer or employee or to 
accept any communication

[[Page 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.



PART 19_BENEFITS FOR SPOUSES AND FORMER SPOUSES OF PARTICIPANTS IN THE FOREIGN 

SERVICE RETIREMENT AND DISABILITY SYSTEM--Table of Contents




Sec.
19.1 Authorities.
19.2 Definitions.
19.3 Participants.
19.4 Special rules for computing creditable service for purposes of 
          payments to former spouses.
19.5 Required notifications to department respecting spouses and former 
          spouses.
19.5-1 Notification from participant or annuitant.
19.5-2 Notification to Department from former spouses.
19.5-3 Residence of spouse during service at unhealthful post.
19.6 Court orders and divorce decrees.
19.6-1 Orders by a court.
19.6-2 Qualifying court order.
19.6-3 Application for payment.
19.6-4 Date of court orders.
19.6-5 Preliminary review.
19.6-6 Notification.
19.6-7 Decision.
19.6-8 Allotment to beneficiary.
19.6-9 Limitations.
19.6-10 Liability.
19.7 Spousal agreements.
19.7-1 Purpose.
19.7-2 Agreement with spouse.
19.7-3 Agreement with former spouse.
19.7-4 Form of agreement.
19.7-5 Limitations.
19.7-6 Duration and precedence of spousal agreements.
19.8 Obligations of members.
19.9 Pension benefits for former spouses.
19.9-1 Entitlement.
19.9-2 Commencement and termination.
19.9-3 Computation and payment of pension to former spouse.
19.9-4 Effect on annuitant.
19.10 Types of annuities to members.
19.10-1 Full annuity.
19.10-2 Reduced annuity with regular survivor annuity to spouse or 
          former spouse.
19.10-3 Marriage after retirement.
19.10-4 Death or divorce of a spouse and remarriage after retirement.
19.10-5 Reduced annuity with additional survivor annuity to spouse of 
          former spouse.
19.10-6 Benefits for recall service.
19.11 Survivor benefits.
19.11-1 Kinds of survivor benefits.
19.11-2 Regular survivor annuity for a former spouse.
19.11-3 Regular survivor annuity for a spouse.
19.11-4 Procedure in event a spouse or former spouse is missing.
19.11-5 Commencement, termination and adjustment of annuities.
19.11-6 Death during active duty.
19.11-7 Annuity payable to surviving child or children.
19.11-8 Required elections between survivor benefits.
19.12 Employment in a Government agency.
19.13 Lump-sum payment.
19.13-1 Lump-sum credit.
19.13-2 Share payable to a former spouse.
19.13-3 Payment after death of principal.
19.14 Waiver of annuity.

    Authority: 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).

    Source: 46 FR 12958, Feb. 19, 1981, unless otherwise noted. 
Redesignated at 46 FR 18970, Mar. 27, 1981.



Sec. 19.1  Authorities.

    Chapter 8 of the Foreign Service Act of 1980 (Pub. L. 96-465, 94 
Stat. 2102) (hereafter ``the Act''), and any Executive order issued 
under authority of section 827 of the Act.



Sec. 19.2  Definitions.

    (a) Agencies means the Department, the Agency for International 
Development (AID), the International Communication Agency (USICA), the 
Foreign Agricultural Service (FAS), and the Foreign Commercial Service 
(FCS).
    (b) Annuitant means any person including a former participant or 
survivor who meets all requirements for an annuity from the Fund under 
the provisions of the Foreign Service Act of 1980, or any other law and 
who has filed claim therefor.
    (c) Basic salary means the salary fixed by law or administrative 
action before deductions and exclusive of additional compensation of any 
kind. It includes the salary fixed by sections 401, 402, 403, and 406 of 
the Act and salary incident to assignment under section 503 of the Act. 
Basic salary excludes premium pay for overtime,

[[Page 72]]

night, Sunday and holiday work, allowances, post and special 
differentials, and charg[eacute] pay.
    (d) Chief of Mission means a principal officer in charge of a 
diplomatic mission of the United States or of a United States Office 
abroad which has been designated diplomatic in nature or any member of 
the Foreign Service assigned under the terms of the Act to be 
charg[eacute] d'affaires or head of such a mission or office.
    (e) Child means, except with reference to lump-sum payments, an 
unmarried child, under the age of 18 years, or such unmarried child 
regardless of age who because of physical or mental disability incurred 
before age 18 is incapable of self-support. In addition to the offspring 
of the participant, the term includes:
    (1) An adopted child;
    (2) A stepchild or recognized natural child who received more than 
one-half support from the participant; and
    (3) A child who lived with and for whom a petition of adoption was 
filed by a participant, and who is adopted by the surviving spouse of 
the participant after the latter's death. ``Child'' also means an 
unmarried student under the age of 22 years. For this purpose, a child 
whose twenty-second birthday occurs before July 1 or after August 31 of 
a calendar year, and while a student, is deemed to have become 22 years 
of age on the first day of July after the birthday.
    (f) Court means any court of any State or of the District of 
Columbia.
    (g) Court Order means any court decree of divorce or annulment, or 
any court approved property settlement agreement incident to any court 
decree of divorce or annulment.
    (h) Department means the Department of State.
    (i) Divorce means the dissolution of a marriage by a final decree of 
divorce or annulment.
    (j) Expressly provided for means a direction by a court order to 
divide a member's Foreign Service Retirement benefits or survivor 
benefits and awarding a portion of such benefits to an eligible 
beneficiary.
    (k) Former spouse \1\ 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 Sec. 19.5-3 for procedures to 
determine this extra period of marriage.
---------------------------------------------------------------------------

    \1\ 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.
---------------------------------------------------------------------------

    (l) Fund means the Foreign Service Retirement and Disability Fund.
    (m) M/MED means the Department's Office of Medical Services.
    (n) Military and naval service means honorable active service:
    (1) In the Armed Forces of the United States;
    (2) In the Regular or Reserve Corps of the Public Health Service 
after June 30, 1960; or
    (3) As commissioned officer of the National Oceanic and Atmospheric 
Administration or predecessor organization after June 30, 1961.

However, this definition does not include service in the National Guard, 
except when ordered to active duty in the service of the United States.
    (o) Participant means a person as described in Sec. 19.3.

[[Page 73]]

    (p) Previous spouse means any person formerly married to a 
principal, whether or not such person qualifies as a former spouse under 
paragraph (k) of this section.
    (q) Principal means a participant or former participant whose 
service forms the basis for a benefit under chapter 8 of the Act for a 
spouse, previous spouse, former spouse or child of a participant.
    (r) PER/ER/RET means the Department's Retirement Division in the 
Bureau of Personnel.
    (s) Pro rata share means, in the case of any former spouse of any 
participant or former participant, a percentage which is equal to the 
percentage that (1) the number of years and months during which the 
former spouse was married to the participant during the creditable 
service of that participant is of (2) the total number of years and 
months of such creditable service. When making this calculation, item 
(1) is adjusted in accordance with paragraph (k) of this section and 
item (2) is adjusted in accordance with Sec. 19.4. In the total period, 
30 days constitutes a month and any period of less than 30 days is not 
counted.
    (t) Spousal agreement means any written agreement between a 
participant or former participant, and the participant's spouse or 
former spouse.
    (u) Student means a child regularly pursuing a full-time course of 
study or training in residence in a high school, trade school, technical 
or vocational institute, junior college, university, or comparable 
recognized educational institution. A child who is a student shall not 
be deemed to have ceased to be a student during any interim between 
school years, semesters, or terms if the interim or other period of 
nonattendance does not exceed 5 calendar months and if the child shows 
to the satisfaction of the Retirement Division (PER/ER/RET) that the 
child has a bona fide intention of continuing to pursue such course 
during the school year, semester, or term immediately following the 
interim.
    (v) Surviving spouse means the surviving wife or husband of a 
participant or annuitant who, in the case of death in service or 
marriage after retirement, was married to the participant or annuitant 
for at least one year immediately preceding death or is the parent of a 
child born of the marriage.
    (w) System means the Foreign Service Retirement and Disability 
System.

[46 FR 12958, Feb. 19, 1981. Redesignated and amended at 46 FR 18970, 
Mar. 27, 1981]



Sec. 19.3  Participants.

    The following persons are participants in the System:
    (a) Members of the Service serving under a career appointment or as 
a career candidate under section 306 of the Act (1) in the Senior 
Foreign Service, or (2) assigned to a salary class in the Foreign 
Service Schedule;
    (b) Any person not otherwise entitled to be a participant who has 
served as chief of mission or an ambassador at large for an aggregate 
period of 20 years or more, exclusive of extra service credit for 
service at unhealthful posts, and who has paid into the Fund a special 
contribution for each year of service;
    (c) Any individual who was appointed as a Binational Center Grantee 
and who completed, prior to February 15, 1981, at least 5 years of 
satisfactory service as a grantee, as determined by the Director of 
Personnel of USICA, or under any other appointment under the Foreign 
Service Act of 1946, as amended, who has paid into the Fund a special 
contribution for such service.
    (d) Any person converted to the competitive service pursuant to 
section 2104 of the Act who elects to participate in the System pursuant 
to section 2106(b)(1) or (2) shall remain a participant so long as he/
she is employed in an agency which is authorized to utilize the Foreign 
Service personnel system.



Sec. 19.4  Special rules for computing creditable service for purposes of 

payments to former spouses.

    For purposes of determining the pro rata share of annuity, survivor 
annuity or lump-sum payable to a former spouse, the following shall be 
considered creditable service--
    (a) The entire period of a principal's approved leave without pay 
during full-time service with an organization composed primarily of 
Government employees irrespective of whether the

[[Page 74]]

principal elects to make payments to the Fund for this service;
    (b) The entire period of Government service for which a principal 
received a refund of retirement contributions which he/she has not 
repaid unless the former spouse received under Sec. 19.13 a portion of 
the (lump-sum) refund or unless a spousal agreement or court order 
provided that no portion of the refund be paid to the former spouse; and
    (c) All creditable service including service in excess of 35 years.

The period covered by the credit for unused sick leave is not creditable 
for this purpose.



Sec. 19.5  Required notifications to Department respecting spouses and former 

spouses.



Sec. 19.5-1  Notification from participant or annuitant.

    If a participant or former participant becomes divorced on or after 
February 15, 1981, he/she shall notify the Department (PER/ER/RET) of 
the divorce on or prior to its effective date. The notice shall include 
the effective date of the divorce, the full name, mailing address, and 
date of birth of the former spouse and the date of the member's marriage 
to that person, and enclose a certified copy of the divorce decree. If 
there is a court order or spousal agreement concerning payment or 
nonpayment of Foreign Service benefits to the former spouse, the 
original or a certified copy of the order or agreement shall also be 
forwarded to PER/ER/RET. In the absence of a court order or spousal 
agreement providing otherwise, the Department will pay a pro rata share 
of the member's benefits to the former spouse. (A former spouse of a 
former participant who separated from the Service on or before February 
15, 1981 is not eligible for a pension under Sec. 19.9, i.e., not 
eligible for a pro rata share of the principal's annuity.) Upon receipt 
of notice of a divorce, a court order, or spousal agreement, the 
Department will proceed as indicated in Sec. 19.6 or Sec. 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 Sec. 19.6-4.



Sec. 19.5-2  Notification to Department from former spouses.

    A former spouse is obligated to notify the Department of the 
following on a timely basis:
    (a) A divorce from a participant or former participant when the 
former spouse is notified by the court of the divorce before the 
participant is notified;
    (b) Any change in address; and
    (c) Any remarriage.

Notices shall be sent to the Department of State, Attention PER/ER/RET, 
Washington, DC 20520.



Sec. 19.5-3  Residence of spouse during service at unhealthful post.

    (a) The calculation of the pro rata share of benefits for a former 
spouse, and the determination of whether a person qualifies as a 
``former spouse'' depends on the length of the marriage. The latter, 
under the definition in the Act and when the principal has received 
extra service credit for an assignment to an unhealthful post, depends 
upon whether a spouse has resided with the principal at the unhealthful 
post. In order to determine residency for this purpose, whenever a 
married participant is assigned to an unhealthful post for which he/she 
does not receive post differential and does receive or request extra 
service credit, the participant shall report on Form OF-140, Election to 
Receive Extra Service Credit Towards Retirement, whether his/her spouse 
is or is not residing at the post. Although a chief of mission is not 
required to submit Form OF-140 in order to receive extra credit for 
service at an unhealthful post, he/she must nevertheless submit this 
form if the chief of mission has a spouse that does not accompany him/
her at post for the entire assignment. Both the participant and spouse 
shall sign the completed form. If there is a change in residence of the 
spouse during the assignment, a new joint Form OF-140 shall be filed to 
report the change.
    (b) Whenever a participant retires or becomes divorced, or whenever 
a former participant becomes divorced

[[Page 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.
    (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.



Sec. 19.6  Court orders and divorce decrees.



Sec. 19.6-1  Orders by a court.

    (a) A court may--
    (1) Fix the amount of any pension to a former spouse under Sec. 
19.9, or order that none be paid;
    (2) Fix the amount of any regular survivor annuity to a former 
spouse under paragraphs (a) and (b) of Sec. 19.11, or order that none 
be paid;
    (3) Order provision of an additional survivor annuity for a spouse 
or former spouse under Sec. 19.10-5;
    (4) Fix the amount of any benefit under Sec. 19.10-6 based on 
recall service payable to a former spouse to whom the annuitant was 
married during any portion of the recall service, or order that none be 
paid;
    (5) Fix the amount of any lump-sum payable to a former spouse under 
Sec. 19.13 or order that none be paid;
    (6) Order, to the extent consistent with any obligation stated in 
Sec. 19.8 between a participant and a former spouse, and pursuant to 
any court decree of divorce, legal separation or annulment or any court 
ordered or approved property settlement agreement incident to any court 
decree of divorce, legal separation, or annulment, that any payment from 
the Fund which would otherwise be made to a former participant based on 
his/her service shall be paid (in whole or in part) by the Secretary of 
State to a previous spouse or child of such participant. No 
apportionment under this paragraph may be made of a payment authorized 
to be paid to a survivor of a participant or annuitant.
    (b) An order by a court that does not meet the definition of 
``court'' in Sec. 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.



Sec. 19.6-2  Qualifying court order.

    (a) To be valid for purposes of this section, a court order must be 
found to be ``qualified'' by PER/ER/RET acting for the Secretary of 
State. A qualifying court order must--
    (1) Be consistent with the terms of the Act and applicable 
regulations;
    (2) Not direct payment of an amount in excess of the maximum amount 
authorized to be paid by the relevant regulation;
    (3) Direct that payments be made to an eligible beneficiary from a 
principal's Foreign Service retirement benefit or survivor benefit. If a 
court directs or implies that a principal, rather than the Secretary of 
State or the Government, make the payments, the order will not be 
considered qualified unless the principal does not object during the 30-
day notice period provided under Sec. 19.6-6;
    (4) Define the amount to be paid to a beneficiary in way so that it 
can be readily calculated from information in the normal files of the 
Department;
    (5) Not make payment contingent upon events other than those on 
which other payments from the Fund are based such as age, marital status 
and school attendance; and
    (6) Not be in conflict with any previously issued court order which 
remains valid.

[[Page 76]]

    (b) No apportionment of annuity to a beneficiary under Sec. 19.6-
1(a) (1) or (6) shall exceed the net annuity of the principal. The net 
annuity is computed by excluding from the gross annuity the amounts 
which are:
    (1) Owed by the individual to the United States;
    (2) Deducted for health benefits premiums pursuant to section 8906 
of Title 5, United States Code;
    (3) Deducted for life insurance premiums under the Government Life 
Insurance Program;
    (4) Owed due to overpayment of annuity;
    (5) Properly withheld for Federal income tax purposes, if amounts 
withheld are not greater than they would be if the individual claimed 
all dependents to which he/she was entitled.

[46 FR 12958, Feb. 19, 1981. Redesignated and amended at 46 FR 18970, 
Mar. 27, 1981]



Sec. 19.6-3  Application for payment.

    (a) To receive payment from the Fund pursuant to a court award, the 
beneficiary must submit an application in writing to the Chief of the 
Retirement Division (PER/ER/RET), Department of State, Washington, DC 
20520. The application must be typed or printed, signed by the 
beneficiary, and include--
    (1) The full name, date of birth, current address and current 
marital status of the beneficiary;
    (2) Full name and date of birth of the participant or former 
participant and his/her date of birth or other identifying information;
    (3) Relationship to the beneficiary, and if a spouse or former 
spouse, date of marriage to and/or divorce from the participant;
    (4) A statement that the court order has not been amended, 
superseded, or set aside;

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.
    (b) When payments are subject to termination upon the occurrence of 
a condition subsequent, such as marriage, remarriage or termination of 
schooling, or death of the principal, no payment will be made until the 
beneficiary submits a statement to PER/ER/RET that--
    (1) The condition has not occured;
    (2) He/she will notify the Department (PER/ER/RET) within 15 
calendar days of the occurrence of the condition subsequent; and
    (3) He/she will be personally liable for any overpayment to him/her 
resulting from the occurrence of the condition subsequent. PER/ER/RET 
may require periodic recertification of these statements.



Sec. 19.6-4  Date of court orders.

    (a) A court order directing or barring payment of a pension to a 
former spouse under Sec. 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 Sec. 19.11-2 or Sec. 19.10-5 may not 
be given effect by the Department if it is issued after the death of the 
principal.
    (b) A court order issued within 12 months after a divorce becomes 
final directing payment of a pension to a former spouse in an amount 
other than provided in Sec. 19.9 may be made retroactively effective to 
the first of the month in which the divorce becomes final if so 
specified by the court. In such event, the Department will adjust any 
future payments that may become due to an annuitant and a former spouse 
by increasing one and correspondingly reducing the other in order to 
give effect to the order of the court. However, if future payments to 
one party are not due, as for example if a court orders that no payments 
be made to a former spouse, or that 100 percent of an annuity be paid as 
pension to a former spouse, the Department will not give retroactive 
effect to a court order by collecting overpayments from one party in 
order to pay them to the other party and will not make overpayments from 
the Fund.
    (c) A court order under this chapter involving any payment other 
than a pension to a former spouse under Sec. 19.9 may not be given 
retroactive effect and shall not be effective until it is determined to 
be a qualifying order under Sec. 19.6-5.

[[Page 77]]



Sec. 19.6-5  Preliminary review.

    (a) Upon receipt of an application for payment under Sec. 19.6-3, 
PER/ER/RET will determine whether--
    (1) The application is complete;
    (2) The applicant is an eligible beneficiary under this chapter; and
    (3) The court order is a qualifying order. If the application is 
completed, the beneficiary is eligible and the court order appears on 
its face to be a qualifying order, PER/ER/RET will provide the 
notification required by Sec. 19.6-6, otherwise, it will notify the 
applicant of any deficiency or requirement for additional information, 
and if the order is determined to be non-qualifying, the basis for such 
determination.
    (b) Upon receipt of a certified copy of a final decree of divorce, 
PER/ER/RET will determine whether--
    (1) It is a valid decree. Any decree recognized as valid by the 
parties will be considered valid for this purpose. In addition, any non-
recognized decree will be considered valid for this purpose unless:
    (i)(A) Neither party was domiciled within the court's jurisdiction, 
and
    (B) The party denying recognition did not participate in the 
proceedings, or
    (ii) The party denying recognition was not afforded notice of the 
proceedings (actual or constructive);
    (2) A related court order has been submitted by either party; and
    (3) A pro rata share payment is or may become due the former spouse. 
If a divorce decree is deemed valid under this paragraph, a pro rata 
share payment is due a former spouse unless PER/ER/RET is in receipt of 
a court order which it has deemed qualified under paragraph (a) of this 
section, or a valid spousal agrement providing otherwise. If it 
determines that a pro rata share payment is due, it will provide the 
notification required by Sec. 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.

[46 FR 12958, Feb. 19, 1981. Redesignated and amended at 46 FR 18970, 
Mar. 27, 1981]



Sec. 19.6-6  Notification.

    (a) Notification to a principal. Whenever PER/ER/RET receives from a 
former spouse or other eligible beneficiary--
    (1) a court order which it deems qualified that requires payment to 
the beneficiary; or
    (2) A final decree of divorce which it deems valid together with a 
request for a pro rata share payment--PER/ER/RET will send a copy of the 
document to the principal and a notice stating: (i) That PER/ER/RET 
deems the order qualified or the divorce decree valid, (ii) that 
payments will be made from the principal's account to the beneficiary 
and the effective date of such payments, (iii) the effect of such 
payments on the principal's retirement benefit. In the case of any court 
order with retroactive or immediate effect, and in the case of pro rata 
share payments, the amounts will be withheld from future payments to the 
principal but will not be paid to the beneficiary for 30 days from the 
notice date in order to give the principal an opportunity to contest the 
court order or the validity of the divorce.

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.
    (b) Notification to a former spouse. When PER/ER/RET receives from a 
principal--(1) a court order which it deems qualified that requires or 
forbids payment to a former spouse; or (2) a final decree of divorce 
which it deems valid without an accompanying court order--PER/ER/RET 
will send a copy of the document to the former spouse and a notice 
stating: (i) That PER/ER/RET deems the court order qualified or the 
divorce decree valid, (ii) that PER/ER/RET intends to honor the court 
decree or to make pro rata share payments because of the divorce, (iii) 
the effective date, exact amount, and method of calculation of any 
payments to the former spouse.

PER/ER/RET will provide the same information to the principal and will 
explain the effect any payment to a

[[Page 78]]

former spouse will have on the principal's retirement benefit.



Sec. 19.6-7  Decision.

    (a) When a response has not been received by PER/ER/RET from a 
principal within the 30-day period under Sec. 19.6-6a, payment will be 
made in accordance with the notification. When a response is received, 
the Chief, PER/ER/RET will consider the response. If it is shown that a 
court order is not qualifying or that a divorce is not valid under terms 
of the Act and these regulations, payment proposed in the notification 
will not be made. In such a case, PER/ER/RET will advise both parties of 
the basis for its decision and the alternative action, if any, that it 
proposes to take.
    (b) If a principal responding to a notification under Sec. 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.

[46 FR 12958, Feb. 19, 1981. Redesignated and amended at 46 FR 18970, 
Mar. 27, 1981]



Sec. 19.6-8  Allotment to beneficiary.

    If a court order is not a qualifying court order because it directs 
or implies that payment to the beneficiary is to be made by the 
principal rather than the Secretary of State, the principal may make an 
allotment to the beneficiary from his/her annuity. An annuitant may also 
make an allotment from his/her annuity to a previous spouse in the 
absence of a court order.



Sec. 19.6-9  Limitations.

    (a) Retirement benefits are subject to apportionment by court order 
under Sec. 19.6-1(a)(6) only while the principal is living. Payment of 
apportioned amounts will be made only to a previous spouse and/or the 
children of the principal. Such payments will not be made to any of the 
following:
    (1) Heirs or legatees of the previous spouse;
    (2) Creditors of either the principal or the previous spouse; or
    (3) Assignees of either the principal or the previous spouse.
    (b) The amount of any court ordered payment may not be less than one 
dollar and, in the absence of compelling circumstances, shall be in 
whole dollars.
    (c) In honoring and complying with a court order, the Department 
shall not be required to disrupt the scheduled method of accruing 
retirement benefits or the normal timing for making such payments, 
despite the existence of any special schedule relating to a previous 
spouse or other beneficiary.
    (d) In cases where the court order apportions a percentage of the 
retirement benefits, PER/ER/RET will initially determine the amount of 
proper payment. That amount will only be increased by future cost-of-
living increases unless the court directs otherwise.



Sec. 19.6-10  Liability.

    (a) The Department shall not be liable for any payment made from 
retirement benefits pursuant to a court order if such payment is made in 
accordance with the provisions of this chapter.
    (b) In the event that the Secretary is served with more than one 
court order with respect to the same retirement benefits, the benefits 
shall be available to satisfy the court orders on a first-come, first-
served basis.
    (c) A previous spouse or other beneficiary may request that an 
amount be withheld from the retirement benefits of a principal or 
survivor of a principal which is less than the amount stipulated in a 
court order, or otherwise scheduled to be paid to the beneficiary under 
this chapter. This lower amount will be deemed a complete fulfillment

[[Page 79]]

of the obligation of the Department for the period in which the request 
is in effect. See Sec. 19.14.



Sec. 19.7  Spousal agreements.



Sec. 19.7-1  Purpose.

    A spousal agreement may be used by both parties to establish an 
agreed-upon level of benefits to a spouse or a former spouse and to 
relieve the participant of responsibility for providing a higher level 
of benefits.



Sec. 19.7-2  Agreement with spouse.

    (a) A spousal agreement between a participant and a spouse may waive 
or fix the level of a regular survivor annuity under Sec. 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 Sec. 
19.2(k). If an agreement is not filed, the participant's annuity will be 
reduced under Sec. 19.10-2 to provide the maximum regular survivor 
annuity for the spouse, but in the event of a future divorce if the 
spouse meets the definition of ``former spouse,'' that person will be 
entitled only to a pro rata share of the survivor annuity. An agreement 
under this paragraph may be filed with PER/ER/RET at any time prior to 
retirement (commencement of the principal's annuity).
    (b) A spousal agreement between an annuitant and a spouse filed with 
PER/ER/RET before commencement of a supplemental annuity for recall 
service may waive a supplemental survivor annuity that would otherwise 
be provided for a spouse under Sec. 19.10-6.
    (c) A spousal agreement between a participant or former participant 
and a spouse may be filed with PER/ER/RET at any time in accordance with 
Sec. 19.10-5 and provide for an additional survivor annuity for the 
spouse.
    (d) A spousal agreement filed under paragraph (a), (b), or (c) 
remains valid and binding in the event of divorce if the spouse 
qualifies as a former spouse.



Sec. 19.7-3  Agreement with former spouse.

    (a) A spousal agreement between a participant or former participant 
and a former spouse may waive, reduce or increase the following benefits 
for a former spouse;
    (1) A pension under Sec. 19.9;
    (2) A regular survivor annuity under Sec. 19.11-2;
    (3) A supplemental survivor annuity under Sec. 19.10-6;
    (4) A lump sum payment for regular or recall service under Sec. 
19.13.

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 Sec. 
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 Sec. 19.11-2(b) for persons retired on February 15, 1981, 
or in Sec. 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 Sec. 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.
    (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 Sec. 19.10-5 to provide an additional survivor annuity 
for the former spouse.

[[Page 80]]



Sec. 19.7-4  Form of agreement.

    (a) A spousal agreement is any legal agreement between the parties 
accepted by PER/ER/RET as meeting the requirements of this section. If 
in accordance with the regulations, PER/ER/RET will accept as a valid 
spousal agreement a property settlement agreed to by the parties and 
approved by a court regardless of the date of the agreement.
    (b) A spousal agreement must either be authenticated by a court or 
notarized.



Sec. 19.7-5  Limitations.

    (a) A spousal agreement may not provide for any payment from the 
Fund in excess of the amount otherwise authorized to be paid, or at a 
time not authorized by these regulations, or to a person other than a 
spouse or former spouse.
    (b) A spousal agreement must be filed with the Department, Attention 
PER/ER/RET, and accepted by that office as in conformance with the Act 
and these regulations prior to the times specified in Sec. Sec. 19.7-2 
and 19.7-3. That office will provide advice to the parties on the 
validity of any proposed agreement and on proper format.
    (c) A spousal agreement may apply only to payments from the Fund for 
periods after receipt of a valid agreement by the Department.
    (d) Paragraphs (b), (c) and (d) of Sec. Sec. 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.



Sec. 19.7-6  Duration and precedence of spousal agreements.

    (a) A spousal agreement may be revised or voided by agreement of the 
parties (by filing a new agreement under this section) at any time prior 
to the last day for filing an agreement determined in accordance with 
Sec. 19.7-2 or Sec. 19.7-3, except spousal agreements for additional 
survivor annuities are irrevocable. After the last day for filing a 
particular agreement, such agreement is irrevocable.
    (b) A valid spousal agreement entered into subsequent to the 
issuance of a court order affecting the same parties will override the 
court order, and shall govern payments from the Fund.
    (c) A spousal agreement may not override a previous spousal 
agreement involving the same principal but a different spouse or former 
spouse without agreement of such spouse or former spouse.



Sec. 19.8  Obligations of members.

    Participants and former participants are obligated by the Act and 
these regulations to provide the following benefits to others and must 
accept the necessary reductions in their own retirement benefits to meet 
these obligations:
    (a) A pension to a former spouse pursuant to Sec. 19.9;
    (b) A court ordered apportionment of annuity to a previous spouse or 
child under Sec. 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 Sec. 19.11-7);
    (c) A regular survivor annuity to a former spouse who has not 
remarried prior to age 60, and to a spouse to whom married when annuity 
commences, pursuant to Sec. Sec. 19.11-2 and 19.11-3;
    (d) An additional survivor annuity for a spouse or former spouse 
under Sec. 19.10-5 when elected by the participant or ordered by a 
court;
    (e) Lump-sum payments to a former spouse pursuant to Sec. 19.13;
    (f) Benefits ordered by a court under Sec. 19.6 or specified in a 
spousal agreement under Sec. 19.7.



Sec. 19.9  Pension benefits for former spouses.



Sec. 19.9-1  Entitlement.

    (a) Unless otherwise expressly provided by a spousal agreement under 
Sec. 19.7 or a court order under Sec. 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 Sec. 19.9-2 in an amount determined under Sec. 19.9-3.

[[Page 81]]

    (b) A former spouse shall not be qualified for a pension under this 
subsection if, before the commencement of that pension, the former 
spouse remarries before becoming 60 years of age.
    (c) A pension benefit under this section is treated the same as a 
survivor annuity for purposes of Sec. 19.11-5(b): a former spouse who 
elects to receive a pension under this section must waive simultaneous 
receipt of any survivor annuity.

[46 FR 12958, Feb. 19, 1981. Redesignated and amended at 46 FR 18970, 
Mar. 27, 1981]



Sec. 19.9-2  Commencement and termination.

    (a) The pension of a former spouse under this subsection commences 
on the latter of the day the principal becomes entitled to a Foreign 
Service annuity or on the first day of the month in which the divorce 
becomes final. (Suspension or reduction of a Foreign Service annuity 
because or reemployment does not affect the commencement of a pension to 
a former spouse.) In the case of any former spouse of a disability 
annuitant, the pension of such former spouse shall commence on the 
latter of:
    (1) The date the principal would qualify for an annuity (other than 
a disability annuity) on the basis of his/her creditable service;
    (2) The date the disability annuity begins; or
    (3) The first of the month in which the divorce becomes final.
    (b) The pension of a former spouse and the right thereto terminate 
on:
    (1) The last day of the month before the former spouse dies or 
remarries before 60 years of age; or
    (2) The date the annuity of the former participant terminates unless 
the termination results from recall, reappointment or reinstatement in 
the Foreign Service or reemployment in Government service.



Sec. 19.9-3  Computation and payment of pension to former spouse.

    (a) A pension to a former spouse is paid monthly on the same date 
that annuity is paid to the principal.
    (b) No spousal agreement or court order may provide for a pension or 
any combination of pensions to former spouses of any one principal which 
exceeds the net annuity of the principal as defined in Sec. 19.6-2(b).
    (c) A pension to a former spouse not fixed by a spousal agreement or 
court order shall equal the former spouse's pro rata share of 50 percent 
of the annuity to which the principal is entitled on the date the 
divorce becomes final, or, if not then entitled to an annuity, 50 
percent of the annuity to which the principal first becomes entitled 
following that date. A pension to a former spouse of a disability 
annuitant shall be calculated on the basis of an annuity for which the 
participant would qualify if not disabled. A pension to a former spouse 
will be increased by the same percentage of each cost-of-living 
adjustment received by the principal.
    (d) The Department will initiate payment of a pension to a former 
spouse after complying with the notification and other procedures 
described in Sec. 19.6.
    (e) If a pension can not be paid because a former spouse is missing, 
the principal may file an affidavit with PER/ER/RET that he/she does not 
know the whereabouts of the former spouse. In such an event, the 
principal and the Department will follow the procedures in Sec. 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

[[Page 82]]

principal for the benefit of the former spouse.



Sec. 19.9-4  Effect on annuitant.

    Any pension payable to a former spouse under this section or 
pursuant to any spousal agreement or court order shall be deducted from 
the annuity of the principal. (See Sec. 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.



Sec. 19.10  Types of annuities to members.



Sec. 19.10-1  Full annuity.

    If a participant retires and does not provide a survivor annuity to 
a spouse, former spouse or designated beneficiary, the participant 
receives a ``full'' annuity. A full annuity means an annuity computed 
without any survivorship reduction. Example: Average salary $20,000 and 
maximum of 35 years of service.

Average basic annual salary for high 3 consecutive years of      $20,000
 service......................................................
Multiplied by 2 pct...........................................       .02
                                                               ---------
                                                                 $400.00
Multiplied by 35 years of creditable service..................       .35
                                                               ---------
Full annuity..................................................   $14,000
 



Sec. 19.10-2  Reduced annuity with regular survivor annuity to spouse or 

former spouse.

    (a) At commencement of annuity, a participant or former participant 
may provide a regular survivor annuity for any eligible former spouse 
and, within the limits of paragraph (b) of this section, a regular 
survivor annuity to any spouse to whom he/she is then married as 
described in Sec. Sec. 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\1/2\ 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:

    Participant's full annuity as computed in Sec. 19.10-1: $14,000.
    Maximum regular survivor annuity is 55 percent of full annuity: 
$7,700.
    Case I (Participant has a spouse and former spouse at retirement) If 
the pro rata share for a former spouse is 75 percent, the base for this 
benefit will be 75 percent of $14,000: $10,500.
    The base for the maximum regular survivor annuity for a spouse would 
then be 25 percent of $14,000, or $3,500.
    Combined base: $14,000.
    Participant's full annuity reduced as follows:
    2\1/2\ percent of first $3,600 of the base: $90.
    Plus 10 percent of the amount over $3,600 ($14,000-3,600) $10,400: 
$1,040.
    Total reduction in participant's full annuity: $1,130.
    Participant's reduced annuity: $12,870.
    Survivor annuity for former spouse: 55 percent of $10,500 or $5,775.
    Survivor annuity for spouse: 55 percent of $3,500 or $1,925.
    Case II (Participant married at retirement with no former spouse. 
All calculations made without reference to cost-of-living increases 
described in Sec. 19.11-5d.)
    Joint election of base for regular survivor annuity of 90 percent of 
the maximum, or 90 percent of $14,000: $12,600.
    Participant's full annuity reduced as follows:
    2\1/2\ percent of first $3,600 of the base: $90.
    Plus 10 percent of the amount over $3,600 ($12,600-3,600) $9,000: 
$900.
    Total reduction in participant's full annuity: $990.
    Participant's reduced annuity: $13,010.
    In this example, if divorce occurs subsequent to retirement and a 
court orders a 75 percent share for the former spouse, the base for the 
survivor annuity for the former spouse would be 75 percent of $14,000: 
$10,500.

[[Page 83]]

    The participant's full annuity would then be reduced by $780 in 
accordance with the above formula for this survivor benefit, and the 
reduced annuity would be $14,000-780: $13,220.
    If the former spouse qualifies for a pension as described in Sec. 
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%x$13,220x75%): 4,957.50.
    The participant's reduced annuity would then be further reduced by 
this pension ($13,220-$4,957.50) to provide an annuity to the former 
participant of $8,262.50.
    If this annuitant later remarried, the maximum base for the regular 
survivor annuity for the new spouse would be the amount designated at 
retirement, $12,600, less the amount committed to the former spouse, 
$10,500: $12,600-10,500 or $2,100.
    The survivor annuity for this spouse: 55 percent of $2,100 or 
$1,555.
    The election of this benefit for the new spouse would be made 
individually by the annuitant since a marriage after retirement does not 
give a spouse a right to participate in the election.
    If the election is made to provide a regular survivor annuity to the 
new spouse, all of the above calculations would be recomputed effective 
the first day of the month beginning one year after the date of the 
remarriage, as follows:
    Base for survivor annuity for former spouse: 75% of $14,000 or 
$10,500.
    Survivor annuity for former spouse: 55% of $10,500 or $5,775.
    Base for survivor annuity for spouse: 15% of $14,000 or $2,100.
    Survivor annuity for spouse: 55% of $2,100 or $1,555.
    The combined base for the survivor benefits is $10,500 plus $2,100 
or $12,600. The annuity reduction on this combined base as computed 
above is $990.
    The participant's annuity after reduction for survivor benefit would 
be $14,000-$990 or $13,010.
    The pension for the former spouse would be 50%x$13,010x75% or 
$4,878.75.
    The participant's annuity would be further reduced by this amount: 
$13,010-$4,878.75 to provide an annuity after this recalculation of 
$8,131.25.

    (b) The maximum regular survivor annuity or combination of regular 
survivor annuities that may be provided under this section is limited to 
55% of the principal's full annuity computed at retirement. If an 
annuitant is recalled to active duty in the Foreign Service, he/she may 
provide additional regular survivor annuities under Sec. 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.



Sec. 19.10-3  Marriage after retirement.

    If an annuitant who was unmarried at the time of retirement, 
marries, he/she may within one year after such marriage irrevocably 
elect to receive a reduced annuity and to provide, subject to any 
obligation to provide a survivor annuity for a former spouse, a survivor 
annuity for the new spouse. If such an election is made, the principal's 
annuity shall be reduced in accordance with Sec. 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.



Sec. 19.10-4  Death or divorce of a spouse and remarriage after retirement.

    (a) If the marriage of an annuitant who received a reduced annuity 
at retirement under Sec. 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 Sec. 19.11-2(b) shall 
be followed.
    (b) In the event an annuitant affected by this paragraph remarries, 
the annuitant may elect within one year of remarriage to provide a 
survivor annuity for the new spouse equal in amount to the survivor 
benefit formerly in effect for the previous spouse less any amount 
committed for a former spouse. The annuity of a retiree making such an 
election shall be reduced effective on the first day of the first month 
which begins at least one year after the remarriage to the amount that 
would have been payable had there been no

[[Page 84]]

recomputation under paragraph (a) of this section.



Sec. 19.10-5  Reduced annuity with additional survivor annuity to spouse or 

former spouse.

    (a) General. This section provides an opportunity for a participant 
or former participant who has provided a regular survivor annuity to a 
former spouse to provide a survivor annuity to a second spouse or to 
another former spouse. The additional survivor annuity provided under 
this section generally is more costly than the regular survivor annuity 
because the participant is required to pay it's full cost by deduction 
from salary or annuity, or otherwise, as specified in paragraph (e) of 
this section. The participant must also be in normal health for his/her 
age and pass a physical examination prescribed by the Secretary of State 
(M/MED) to be eligible to provide an additional survivor annuity under 
this section.
    (b) Limitation on amount. Neither the total amount of additional 
survivor annuity or annuities under this section provided by any 
participant or former participant nor any combination of regular or 
additional survivor annuities for any one surviving spouse or former 
spouse of a principal may exceed 55 percent of the principal's full 
annuity counting any supplemental annuity or recomputation of annuity 
because of recall service. An additional survivor annuity provided by 
any principal shall be further limited to the amount that can be 
provided by a monthly payment which is not greater than the principal's 
net annuity described in Sec. 19.6-2(b). The amount of any additional 
survivor annuity provided by a spousal agreement effective prior to the 
principal's retirement, shall be reduced as necessary by PER/ER/RET 
after the principal's retirement to comply with this limitation. Any 
amount paid by a participant for the portion of additional survivor 
annuity cancelled pursuant to this paragraph shall be treated as an 
additional lump sum payment under paragraph (e) of this section and used 
to increase the amount of the additional annuity. A participant who 
separates from the Service without entitlement to any annuity is not 
entitled to provide an additional survivor annuity. Payments in such a 
case would be discontinued as described in paragraph (e) of this 
section.
    (c) Procedures to grant additional survivor annuity. A participant 
or former participant who has provided a regular survivor annuity to a 
former spouse who wishes to provide, or who is ordered by a court to 
provide an additional survivor annuity under this section to a spouse or 
another former spouse, shall do so by filing a spousal agreement with 
PER/ER/RET on a form acceptable to PER/ER/RET. Such an agreement will be 
irrevocable when accepted by PER/ER/RET unless the beneficiary of the 
additional survivor annuity is subsequently made a beneficiary of a 
regular survivor annuity in equal amount. Within the limitations 
specified in paragraph (b) of this section, an individual may be made 
the beneficiary of both a regular and an additional survivor annuity. A 
spousal agreement granting an additional survivor annuity to a spouse 
will remain valid in the event the marriage is dissolved and the spouse 
qualifies as a former spouse under the definition Sec. 19.2(k).
    (d) Eligibility for additional survivor annuity. A spouse or former 
spouse must meet the same criteria (Sec. 19.2(v) or Sec. 19.2(k)) to 
be eligible for an additional survivor annuity as a spouse or former 
spouse must meet to be eligible for a regular survivor annuity. Payment 
of a special survivor annuity will commence on the day after the 
participant dies and shall terminate on the last day of the month before 
death or remarriage before attaining age 60. If it is discontinued 
because of remarriage, it will not be resumed.
    (e) Payment for additional survivor annuity. (1) Payment for an 
additional survivor annuity will commence on the first of the month 
following the effective date of a spousal agreement provising the 
additional survivor annuity. The effective date will be the date of 
acceptance of the spousal agreement by PER/ER-RET (upon a finding that 
the agreement conforms to the law and regulations) or such later date as 
may be specified in the agreement. No payment will be made to a 
beneficiary under the agreement if the principal

[[Page 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 Sec. 19.13 and survivorship rights under this paragraph 
will expire on that date. If the principal dies with an amount owing, it 
shall be collected by set off from the survivor annuity or lump-sum 
account.
    (2) Monthly payments may be reduced or eliminated by direct payment 
to M/COMP/FO by any participant or former participant under terms 
mutually agreed upon by the participant and PER/ER/RET. Minimum monthly 
payments will be based upon actuarial tables prescribed from time to 
time by the Director General of the Foreign Service (M/DGP) with the 
advice of the Secretary of Treasury. Such tables will be calculated so 
that the present value of all payments equal the present value of the 
survivor annuity. If new tables are prescribed, they would be applicable 
to additional survivor annuities provided by spousal agreements that 
become effective on or after the effective date of the new tables. 
Additional survivor annuities will be increased by regular cost-of-
living adjustments from their commencing dates only when so specified at 
the option of the participant or former participant in a spousal 
agreement. Monthly payments will be higher if cost-of-living adjustments 
are provided.
    (3) In the event of the disqualification of a beneficiary for an 
additional survivor annuity because of death, remarriage prior to age 60 
or divorce from the principal and failure to meet the definition of 
``former spouse,'' or in the event of an authorized reduction or 
cancellation of an election for an additional survivor annuity, the 
monthly payment for such discontinued or reduced additional survivor 
annuity will be discontinued or reduced, as appropriate, effective at 
the beginning of the first month following termination or reduction of 
the benefit. Except as otherwise specified in paragraph (b) of this 
section, any amount paid for such discontinued or reduced benefit by a 
participant or former participant in excess of the minimum monthly 
payments described above shall be refunded to the participant or former 
participant with interest calculated at the annual rate used in the last 
evaluation of the System or at such higher rate as may be authorized by 
M/COMP/FO as will not cause a loss to the Fund. The following table 
illustrates the minimum monthly payments schedule in effect February 15, 
1981.

------------------------------------------------------------------------
                                                 Minimum monthly payment
                                                 required to provide an
                                                   additional survivor
 Age of principal and beneficiary on effective     annuity of $100 per
           date of spousal agreement                     month.
                                               -------------------------
                                                  Without
                                                    COLA      With COLA
------------------------------------------------------------------------
40............................................        $7.49       $12.34
50............................................        14.18        22.01
60............................................        23.55        33.90
70............................................        35.57        47.12
------------------------------------------------------------------------

    (4) Reduction from annuity to a principal to pay for an additional 
survivor annuity will be in the nature of an allotment and will not 
affect computations of cost-of-living adjustments to the principal.



Sec. 19.10-6  Benefits for recall service.

    (a) Annuity of recalled participant. Any participant who is recalled 
to the Service under section 308 of the Act, shall, while serving, be 
entitled in lieu of annuity to the full salary of the class in which 
serving. During such service, the recalled annuitant shall make 
contributions to the Fund under section 805(a) of the Act. If a share of 
the annuity is being paid as a pension to a former spouse under Sec. 
19.9, that share shall be deducted from the salary

[[Page 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:
    (1) If the recall service lasts less than one year, a refund of 
retirement contributions made during the recall period will be refunded 
under Sec. 19.13 and the former annuity will be resumed at the previous 
rate adjusted by any cost-of-living increases that became effective 
during recall service.
    (2) If the recall service lasts between one and five years, the 
annuitant will be entitled to elect benefits under paragraph (a)(1) of 
this section or receive both the former annuity adjusted by cost-of-
living increases and a supplemental annuity computed under Sec. 19.10 
on the basis of service credit and average salary earned during the 
recall period, irrespective of the number of years of service credit 
previously earned.
    (3) If the recall service lasts five years or more, the annuitant 
will be entitled to recomputation of the annuity as if there had been no 
previous retirement, or elect benefits under paragraph (a) (1) or (2) of 
this section.
    (4) An annuitant may receive credit in any computation under 
paragraph (a) (2) or (3) of this section for any Federal service 
performed subsequent to the separation upon which the original annuity 
was computed provided a special contribution is made for such service 
under section 805 of the Act.
    (5) An annuitant entitled to a supplemental annuity under paragraph 
(a)(3) of this section or a recomputated annuity under paragraph (a)(4) 
of this section is obligated, in the absence of a court order or spousal 
agreement to the contrary, to have those annuities reduced to provide 
the benefits described in Sec. 19.8 to any spouse or former spouse to 
whom married during any portion of the recall service. An annuitant must 
accept a reduction of 10 percent of his/her supplemental annuity in 
order to provide a supplemental survivor annuity to a spouse or former 
spouse. The maximum supplemental survivor annuity equals 55 percent of 
the supplemental annuity. If, upon reversion to retired status, an 
annuitant has a former spouse entitled to a pro rata share or some other 
share of the supplemental survivor annuity, but no spouse, the 
appropriate share of the supplemental annuity shall be reduced by 10 
percent to provide such former spouse a share of the maximum 
supplemental survivor annuity.
    (b) Survivor benefit for death during recall service. (1) If an 
annuitant entitled to a reduced annuity under Sec. 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 Sec. 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 
Sec. 19.11, to have the rights of the annuitant redetermined and to 
receive a survivor annuity computed under Sec. 19.11-2 or Sec. 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

[[Page 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.
    (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.



Sec. 19.11  Survivor benefits.



Sec. 19.11-1  Kinds of survivor benefits.

    If a participant or former participant dies in active service or 
after retirement, regular survivor annuities are payable under terms of 
this section to an eligible surviving spouse, former spouse or child. 
Also, if all rights to annuity and survivor annuity terminate prior to 
exhaustion of the participant's lump-sum credit, a lump-sum payment is 
made pursuant to Sec. 19.13. In addition to the above, an additional 
survivor annuity, and a supplemental survivor annuity may be payable to 
an eligible survivor under Sec. Sec. 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.



Sec. 19.11-2  Regular survivor annuity for a former spouse.

    (a) Divorce prior to retirement. If a participant or former 
participant is divorced prior to commencement of annuity, any former 
spouse shall be entitled to a pro rata share of such a principal's 
maximum regular survivor annuity (based on service performed prior to 
the first date the principal becomes eligible for an annuity following 
the divorce) unless a different amount is elected in a spousal agreement 
filed with PER/ER/RET within 12 months after the divorce becomes final 
or at the time of the retirement, whichever occurs first, or unless a 
different amount is specified by a court prior to the death of the 
principal. The principal's annuity shall be reduced at the commencing 
date under Sec. 19.10-2 in order to provide the survivor annuity 
committed to the former spouse.
    (b) Divorce after retirement. In the event an annuitant is divorced 
after retirement (commencement of annuity), the maximum survivor annuity 
that may be provided for that former spouse is limited to the amount 
provided for that person at the time of retirement. Within that limit, 
the former spouse is entitled to a pro rata share of the participant's 
maximum survivor benefit (based on service performed prior to the 
divorce) unless a different amount was elected in a spousal agreement 
filed with PER/ER/RET at the time of retirement, or in the case of 
retirement before February 15, 1981, filed with PER/ER/RET within 12 
months after the divorce becomes final, or unless a different amount is 
specified by a court prior to the death of the principal. For this 
purpose, a joint election filed with PER/ER/RET at the time of 
retirement is considered a spousal agreement. If the survivor annuity 
for the former spouse is reduced at the time of the divorce (because the 
pro rata share or the amount specified in a spousal agreement or court 
order is less than the amount elected at retirement), the principal's 
annuity shall be recomputed and paid, effective on the date the survivor 
benefit is reduced, as if the lower amount had been elected at the 
outset of retirement.
    (c) Death or remarriage of former spouse and transfer of survivor 
benefit to a spouse. Remarriage below age 60 or death of a former spouse 
while a principal is alive will disqualify the former spouse for 
benefits under this section. In the event of such a remarriage or death 
of a former spouse, the portion of a principal's survivor annuity 
committed to that person will become available for transfer to any 
spouse. If such a remarriage or death of the

[[Page 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 Sec. 19.10-4 shall be 
followed.
    (d) Amount of survivor annuity. The amount of a regular survivor 
annuity is determined under Sec. 19.11-3(c).
    (e) Special rules for election of survivor annuity for a person who 
is a former spouse on February 15, 1981. (1) Any participant, or former 
participant eligible for a deferred annuity which has not yet commenced, 
who, on February 15, 1981 has a former spouse, may at any time prior to 
commencement of annuity, elect, with the consent of any spouse to whom 
married at the time of the election, to receive a reduced annuity and 
provide a regular survivor annuity for such former spouse. Such survivor 
annuity shall be limited by Sec. 19.10-2(b). An election under this 
paragraph for a former spouse will reduce the amount of any regular 
survivor annuity that may subsequently be provided for any spouse or 
other former spouse.
    (2) Any former participant in receipt of an annuity who has a former 
spouse on February 15, 1981 and who has not committed his/her entire 
annuity as a base for a regular survivor annuity for a spouse or any 
other former spouse, may, prior to December 31, 1982, designate any 
portion of the uncommitted base as the base for a regular survivor 
annuity for such former spouse.
    (3) The annuity of a former participant making an election under 
this paragraph shall be reduced under Sec. 19.10-2(a) effective 
February 15, 1981, or from its commencing date if later.
    (4) An election under this paragraph shall be made by filing a 
spousal agreement with PER/ER/RET under Sec. 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.



Sec. 19.11-3  Regular survivor annuity for a spouse.

    (a) In the absence of a joint election or a spousal agreement to the 
contrary, a participant or former participant who is separated from 
active service on or after February 15, 1981 who is married at the 
commencement of his/her annuity shall provide a regular survivor annuity 
for a spouse under Sec. 19.10-2 equal to the maximum amount that 
remains available under limitations stated in paragraph (b) of that 
section after allowing for any commitment of a regular survivor annuity 
for a former spouse who has not remarried prior to age 60 and who is 
alive on the date the former participant becomes eligible for an 
annuity.
    (b) A regular survivor annuity is also payable to a surviving spouse 
for whom a principal elected an annuity under Sec. 19.10-3, Sec. 
19.10-4, or Sec. 19.11-2(c) following a marriage after comencement of 
his/her annuity.

[[Page 89]]

    (c) The amount of a regular survivor annuity equals 55 percent of 
the base designated for the benefit at the time the principal's annuity 
commenced, adjusted by the total percentage of cost-of-living increases 
the principal was receiving at death.
    (d) A survivor annuity is payable to a surviving spouse only if that 
person was married to the principal at the time of his/her death or if 
the spouse became a former spouse under the definition in Sec. 19.2(k).

[46 FR 12958, Feb. 19, 1981. Redesignated and amended at 46 FR 18970, 
Mar. 27, 1981]



Sec. 19.11-4  Procedure in event a spouse or former spouse is missing.

    If a participant or former participant has a spouse or former spouse 
whose whereabouts are unknown, such participant may elect to reduce or 
eliminate the share of a regular survivor annuity provided for that 
person under Sec. 19.11-2 or Sec. 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.



Sec. 19.11-5  Commencement, termination and adjustment of annuities.

    (a) An annuity payable from the Fund to a surviving spouse or former 
spouse begins on the day after the participant or annuitant dies and 
stops on the last day of the month before the survivor's (1) marriage 
before age 60, or (2) death. If a survivor annuity is terminated because 
of remarriage, the annuity is restored at the same rate effective on the 
date such remarriage is terminated, provided any lump-sum paid upon 
termination of the annuity is returned to the Fund. The termination of a 
surviving spouse annuity due to remarriage does not apply to a survivor 
annuitant who is a surviving spouse of a participant who died in service 
or retired before October 1, 1976, unless elected following a marriage 
after retirement under circumstances described in Sec. 19.10-3 or Sec. 
19.10-4.
    (b) A surviving spouse or former spouse shall not become entitled to 
a survivor annuity or to the restoration of a survivor annuity payable 
from the Fund unless the survivor elects to receive it instead of any 
other survivor annuity to which entitled under this or any other 
retirement system for Government employees. (For this purpose, neither 
the Social Security system nor the military retirement system is 
considered a retirement system for Government employees.) This 
restriction does not apply to a survivor annuitant who is a surviving 
spouse of a participant who died in service or retired before October 1, 
1976, unless the survivor annuity was elected under circumstances 
described in Sec. 19.10-3 or Sec. 19.10-4.
    (c) A child's annuity begins on the day after the participant dies, 
or if a child is not then qualified, on the first day of the month in 
which the child becomes eligible. A child's annuity shall terminate on 
the last day of the month

[[Page 90]]

which precedes the month in which eligibility ceases.
    (d) Regular and supplemental survivor annuities to a spouse or 
former spouse of an annuitant described in Sec. Sec. 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 Sec. 19.10-5 when the spousal agreement 
authorizing the annuity makes no provision for cost-of-living increases.
    (e) The annuity of survivors becomes effective as specified in this 
section but is not paid until the survivor submits Form JF-38, 
Application for Death Benefits, supported by such proof as may be 
required, for example, death, marriage, and/or divorce certificates. In 
the event that such is not submitted during an otherwise eligible 
beneficiary's lifetime, no annuity is due or payable to the 
beneficiary's estate.

[46 FR 12958, Feb. 19, 1981. Redesignated and amended at 46 FR 18970, 
Mar. 27, 1981]



Sec. 19.11-6  Death during active duty.

    (a) Annuity for surviving former spouse. In the event a participant 
dies before separation from the Service and leaves a former spouse, such 
former spouse is entitled to a regular survivor annuity under Sec. 
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 Sec. 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 
Sec. 19.2(k) or when computing the pro rata share under Sec. 19.2(s). 
A former spouse is entitled to an additional survivor annuity under 
Sec. 19.10-5 provided death occurs on or after the effective date of a 
spousal agreement providing for the additional annuity.
    (b) Annuity for surviving spouse. If a participant who has at least 
19 months of civilian service credit toward retirement under the System, 
excluding extra service credited for unhealthful post duty in accordance 
with section 816 of the Act, dies before separation from the Service, 
and is survived by a spouse as defined in Sec. 19.2(v) such survivor 
shall be entitled to an annuity equal to 55 percent of the annuity 
computed in accordance with Sec. 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 Sec. 19.10-5 
provided death occurs on or after the effective date of a spousal 
agreement providing for the additional annuity.
    (c) Annuity for a child or children. If a participant described in 
paragraph (b) of this section is survived by a child or children, each 
surviving child is entitled to an annuity as described in Sec. 19.11-7.
    (d) Annuity changes. Annuities based on a death in service are 
subject to the provisions of Sec. 19.11-5 governing commencement, 
adjustment, termination and resumption of annuities.



Sec. 19.11-7  Annuity payable to surviving child or children.

    (a) If a participant who has at least 18 months of civilian service 
credit under the System dies in service, or if an annuitant who was a 
former participant dies, annuities are payable to a surviving child or 
children, as defined in Sec. 19.2(e) as follows:

[[Page 91]]

    (1) When survived by spouse and child or children. If a principal is 
survived by a wife or husband and by a child or children, in addition to 
any other annuity, there shall be paid to or on behalf of each child an 
annuity equal to the smallest of:
    (i) $900
    (ii) $2,700 divided by the number of children--adjusted under 
paragraph (b).
    (2) When survived by a child or children but no spouse. If the 
principal is not survived by a wife or husband, but by a child or 
children, each surviving child shall be paid an annuity equal to the 
smallest of:
    (i) $1,080
    (ii) $3,240 divided by the number of children--adjusted under 
paragraph (b) of this section.
    (b) Adjusted rates. In order to reflect cost-of-living increases, 
the amounts referred to in paragraphs (a)(1) and (2) are increased from 
the commencing date of the annuity to each child by the cumulative 
percentage of all cost-of-living increases that have occurred under 5 
U.S.C. 8340 since October 31, 1969.
    (c) Recomputation of annuity for child or children. If a surviving 
wife or husband dies or the annuity of a child is terminated, the 
annuities of any remaining children shall be recomputed and paid as 
though such spouse or child had not survived the participant. If the 
annuity to a surviving child who has not been receiving an annuity is 
initiated or resumed, the annuities of any other children shall be 
recomputed and paid from that date as though the annuities to all 
currently eligible children in the family were then being initiated.



Sec. 19.11-8  Required elections between survivor benefits.

    (a) Bar against concurrent payment under this Act and Workers' 
Compensation Act. Except as stated below, survivor annuities and 
survivors' compensation for work injuries under 5 U.S.C. 8102 are not 
payable concurrently if both are based on the death of the same 
employee. A survivor entitled to both must elect which of the two 
benefits he/she prefers. Should all eligible survivors of a deceased 
employee elect to receive the compensation benefit rather than the 
survivor annuity, their rights to the latter are terminated and, if the 
lump-sum credit has not been exhausted, a lump-sum payment will become 
due under Sec. 19.13. The one exception to this rule occurs when a 
widow or widower is being paid the balance of a scheduled compensation 
award under 5 U.S.C. 8107 due the deceased employee. If so, the widow or 
widower may receive the survivor annuity and compensation award 
concurrently.
    (b) Election between survivor annuity and social security benefits. 
Pursuant to 42 U.S.C. 417 (a) and (e), survivors who are eligible for 
annuity which is based in part on military service performed by a 
principal between September 16, 1940, and December 31, 1956, and also 
for survivor benefits under the Social Security system, may elect to 
have the military service credited toward the Social Security benefit. 
In practice, the survivors should apply for both benefits, ask the 
Department and the Social Security Administration for statements showing 
the amount of each benefit, and then make their election of where to 
credit the military service. If Social Security benefits are elected, 
the rights of all survivors to a foreign service annuity are terminated.



Sec. 19.12  Employment in a Government agency.

    An annuitant who is reemployed by a Federal Government agency may 
not receive a combination of salary and annuity which exceeds his/her 
Foreign Service salary at the time of retirement. Refer to Sec. 19.9-4.



Sec. 19.13  Lump-sum payment.



Sec. 19.13-1  Lump-sum credit.

    ``Lump-sum credit'' is the compulsory and special contributions to a 
participant's or former participant's credit in the Fund for his/her 
first 35 years of service plus interest thereon computed from the 
midpoint of each service period and compounded at four percent annually 
to the date of separation or December 31, 1976, whichever is earlier, 
and after such date, for a participant who separates from the Service 
after completing at least one year of civilian service and before 
completing 5

[[Page 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.



Sec. 19.13-2  Share payable to a former spouse.

    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.



Sec. 19.13-3  Payment after death of principal.

    If a participant or former participant dies and no claim for annuity 
is payable, the lump-sum credit is paid to surviving beneficiaries.



Sec. 19.14  Waiver of annuity.

    An individual entitled to be paid an annuity may, for personal 
reasons, decline to accept all or any part of the annuity. However, a 
principal may not waive the portion of his/her annuity authorized to be 
paid to a former spouse under Sec. 19.7 or Sec. 19.9 or to a 
beneficiary under Sec. 19.6. An annuity waiver shall be in writing and 
sent to the Department (PER/ER/RET). A waiver may be revoked in writing 
at any time. Payment of the annuity waived may not be made for the 
period during which the waiver was in effect.



PART 20_BENEFITS FOR CERTAIN FORMER SPOUSES--Table of Contents




Sec.
20.1 Definitions.
20.2 Funding.
20.3 Qualifications.
20.4 Retirement benefits.
20.5 Survivor benefits.
20.6 COLA.
20.7 Waiver.
20.8 Effect on other benefits.
20.9 Application procedure.

    Authority: 22 U.S.C. 3901 et seq.

    Source: 53 FR 39457, Oct. 7, 1988, unless otherwise noted.



Sec. 20.1  Definitions.

    As used in this part, unless otherwise specified, the following have 
the meaning indicated:
    COLA means cost-of-living adjustment in annuity.
    Creditable service or service means employment or other periods that 
are counted under sections 816, 817, or 854 in determining retirement 
benefits.
    Disability annuitant means a participant in FSRDS or FSPS entitled 
to a disability annuity under section 808 of the Act or subchapter V, 
chapter 84, title 5 U.S.C., and a disability annuity means a Foreign 
Service annuity computed under those sections.
    FSRDS means the Foreign Service Retirement and Disability System 
established by subchapter I, chapter 8, of the Act.
    FSPS means the Foreign Service Pension System established by 
subchapter II, chapter 8, of the Act.
    Former spouse means a former wife or husband of a participant or 
former participant who was married to such participant for not less than 
10 years during service of the participant which is creditable under 
chapter 8 of the Act with at least 5 years occurring while the employee 
was a member of the Foreign Service and who retired from the Foreign 
Service Retirement System.
    Full annuity equals the annuity the former participant would be 
eligible to receive except for deductions made to provide survivor 
benefits or because of payment of a portion of the annuity to others.
    Participant means a person who contributes to the Fund identified in 
Sec. 20.2. Such person may participate in either FSRDS or FSPS.
    Principal means a participant or former participant whose service 
forms the basis for a benefit for a former spouse under this part.
    Pro rata share, in the case of a former spouse of a participant or 
former participant, means the percentage obtained by dividing the number 
of months during which the former spouse was married to the participant 
during the creditable service of the participant by the total number of 
months of

[[Page 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.



Sec. 20.2  Funding.

    Benefits under this part are paid from the Fund maintained by the 
Secretary of the Treasury pursuant to section 802 of the Act but are not 
authorized to be paid except to the extent provided therefor. 
Appropriations for such Fund are authorized by section 821(a) of the 
Act.



Sec. 20.3  Qualifications.

    To be eligible for retirement or survivor benefits under this part, 
a former spouse must--
    (a) Have been a former spouse on February 14, 1981;
    (b) After becoming a former spouse, not have remarried before 
attaining age 55;
    (c) In the case of any retirement benefit under Sec. 20.5; elect 
this benefit instead of any survivor annuity for which the former spouse 
may simultaneously be eligible under this or another retirement system 
for Government employees; and
    (d) Submit an application to the Department of State by June 22, 
1990, in accordance with Sec. 20.9 unless that date is extended as 
authorized by that section. The deadline for submission of an 
application for survivor benefits under Sec. 20.5 will be deemed to 
have been met if the former spouse submits an application for retirement 
benefits within the deadline.



Sec. 20.4  Retirement benefits.

    (a) Type of benefits. (1) A former spouse who meets the 
qualification requirements of Sec. 20.3 is entitled to a share of any 
Foreign Service annuity (other than a disability annuity) or any 
supplemental annuity computed under section 806(a), 823 or 824 of the 
Act to which the principal is entitled under FSRDS and to any Foreign 
Service annuity (other than a disability annuity) or annuity supplement 
computed under section 824 or 855 of the Act of 5 U.S.C. 8415 to which 
the principal is entitled under FSPS.
    (2) A former spouse of a disability annuitant is entitled to a share 
of benefits to which the annuitant would qualify under paragraph (a) of 
this section, he or she not been disabled based on the actual age and 
service of the annuitant.
    (b) Share. The share of a participant's benefits to which a 
qualified former spouse is entitled is--
    (1) 50 percent of the benefits described in Sec. 20.4(a) if the 
former spouse was married to the participant throughout the latter's 
creditable service; or
    (2) A pro rata share of 50 percent of such benefits if the former 
spouse was not married to the participant throughout such creditable 
service.
    (c) Reduction of benefits. If retirement benefits of a principal are 
reduced because of reemployment, attainment of eligibility for Social 
Security benefits or for any other reason, the amount of the share 
payable to a former spouse is correspondingly reduced during the period 
of the reduction.
    (d) Commencement, termination and suspension. (1) Entitlement to 
retirement benefits under this section (except for a former spouse of a 
disability annuitant) shall commence on the latter of--
    (i) The day the principal becomes entitled to benefits described in 
Sec. 20.4(a); or
    (ii) December 22, 1987.
    (2) Entitlement to retirement benefits under this section for a 
former spouse of a disability annuitant shall commence on the latter 
of--
    (i) The date the principal would qualify for benefits (other than a 
disability annuity) described in Sec. 20.4(a) on the basis of the 
principal's actual age and service;
    (ii) The date the disability annuity begins; or
    (iii) December 22, 1987.
    (3) Entitlement to retirement benefits under this section shall 
terminate or be suspended on the earlier of--

[[Page 94]]

    (i) Last day of the month before the former spouse dies or remarries 
before attaining age 55;
    (ii) Date benefits of the principal terminate or are suspended 
because of death, recall, reemployment, recovery from disability or for 
any other reason.
    (4) Entitlement to benefits under this section shall be resumed for 
a former spouse, following their suspension, or the date they are 
resumed for the principal.



Sec. 20.5  Survivor benefits.

    (a) Type of benefits. A former spouse who meets the eligibility 
requirements of Sec. 20.3 is entitled to survivor benefits equal to one 
of the following; whichever is applicable:
    (1) 55 percent of the full annuity to which the principal was 
entitled on the commencement or recomputation date of the annuity in the 
case of a principal who dies while in receipt of a Foreign Service 
annuity computed under section 806, 808, 823, 824, or 855 of the Act of 
5 U.S.C. 8415;
    (2) 55 percent of the annuity to which the principal was entitled at 
death in the case of a principal who dies while in receipt of a Foreign 
Service annuity computed under 5 U.S.C. 8452;
    (3) 55 percent of the full annuity to which the principal would have 
been entitled if he or she retired (or returned to retirement status) on 
the date of death computed--depending on the provision that would be 
used to compute an annuity for a surviving spouse of the principal--
under section 806(a), 823, 824, or 855(b) of the Act of 5 U.S.C. 8415 
and using the actual service of the principal, in the case of a 
principal who dies while in active service, including service on recall 
or reemployment while annuity is suspended or reduced; or,
    (4) 55 percent of the full annuity computed under 5 U.S.C. 8413(b) 
that the principal could have elected to receive commencing on the date 
of death or, if later, commencing on the date the principal would have 
attained the minimum retirement age described in 5 U.S.C. 8412(h), in 
the case of a principal while entitled to a deferred annuity under 5 
U.S.C. 8413(b), but before commencement of that annuity. A survivor 
annuity under this paragraph may not commence before the date the 
principal would have attained the minimum retirement age.
    (b) Effect of election of alternate form annuity. If a principal 
elects an alternate form annuity under section 829 of the Act or 5 
U.S.C. 8420a, survivor benefits for a former spouse under this section 
shall, nevertheless, be based on what the principal's annuity would have 
been had the principal not withdrawn retirement contributions in a lump 
sum.
    (c) Reduction because of receipt of other survivor benefits. If a 
former spouse is in receipt of a survivor annuity based on an election 
by the principal under section 806(f) or 2109 of the Act, the survivor 
benefits for the former spouse under this section shall be reduced on 
the effective date by the amount of such elected survivor annuity.
    (d) Commencement and Termination. Entitlement to survivor benefits 
under this section--
    (1) Shall commence on the latter of--
    (i) The date the principal dies;
    (ii) December 22, 1987; and
    (2) Shall terminate on the last day of the month before the former 
spouse dies or remarries before attaining age 55.



Sec. 20.6  COLA.

    (a) Retirement benefits. A retirement annuity payable to a former 
spouse under Sec. 20.4 is adjusted for cost-of-living increases under 
section 826 or 858 of the Act in the same manner as the annuity of the 
principal. The first such increase for a former spouse shall be prorated 
under the applicable section in the same way the first increase for the 
principal is adjusted, irrespective of whether the annuity to the former 
spouse commences on the same date as the annuity to the principal. If 
the benefit of a former spouse is based in part on an annuity supplement 
payable to a principal under 5 U.S.C. 8421 which is not adjusted by 
COLA, then that portion of the benefit payable to a former spouse is not 
adjusted by COLA.
    (b) Survivor benefits. (1) Survivor annuities payable to a former 
spouse are adjusted for COLA under section 826 or 858 of the Act in the 
same manner as annuities are or would be adjusted for other survivors of 
the principal.

[[Page 95]]

    (2) A survivor annuity payable to a former spouse under Sec. 20.5-
1(A) shall be increased from its commencing date pursuant to paragraph 
(c)(2) of section 826 of the Act or 8462 of Title 5, U.S. Code, by all 
COLA received by the principal at death, irrespective of the date of 
death and in instances where death occurred prior to December 22, 1987, 
by all COLA that would have been paid to a survivor annuitant from the 
date of death until December 22, 1987.
    (3) The first increase to which a former spouse becomes entitled 
whose annuity is computed under Sec. 20.5(a)(2) shall be prorated 
pursuant to 5 U.S.C. 8462(c)(4).
    (4) The first increase to which a former spouse becomes entitled 
whose annuity is computed under Sec. 20.5(a)(3) or
    (5) Shall be prorated pursuant to paragraph (c)(1) of section 826 of 
the Act or 8462 or title 5, U.S. Code.



Sec. 20.7  Waiver.

    A former spouse entitled to an annuity under this part may decide to 
decline all or any part of the annuity for personal reasons. An annuity 
waiver shall be in writing and sent to the Retirement Division (PER/ER/
RET), Department of State, Washington, DC 20520. A waiver may be revoked 
in writing at any time. Payment of the annuity waived prior to receipt 
by the Retirement Division of the renovation may not be made.



Sec. 20.8  Effect on other benefits.

    Payment to a former spouse under this part shall not impair, reduce, 
or otherwise affect benefits paid under the Act to the principal or 
other persons.



Sec. 20.9  Application procedure.

    (a) Submission of application. To be eligible for retirement or 
survivor benefits under this part, a former spouse must submit a 
properly executed and completed application to the Department of State 
by June 22, 1990 or, if an exception is made for compelling cause to 
this deadline, within 60 days following the date of the letter from the 
Department transmitting the application to the former spouse. The 
application must be delivered or mailed to the Retirement Division (PER/
ER/RET), Room 1251, Department of State, Washington, DC 20520.
    (b) Request for application. The Department of State has attempted 
to mail applications to all former spouses of whom it is aware that it 
believes may be eligible for benefits under this part. Any eligible 
former spouse who does not have an application at the time this part is 
published in the Federal Register (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 Sec. 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.
    It shall also give the dates of marriage and divorce or annulment 
that establish eligibility and fully identify the Foreign Service 
employee or former employee in question and state the agency of current 
or last employment.
    (c) Payment of benefits delayed. Payment of benefits cannot be made 
to a former spouse until the application for benefits is approved by the 
Retirement Division of the Department. Upon such approval, benefits will 
be paid to an eligible former spouse retroactively, if necessary, back 
to the commencing date determined under this part.



PART 21_INDEMNIFICATION OF EMPLOYEES--Table of Contents




    Authority: 5 U.S.C. 301; 22 U.S.C. 2658.

    Source: 60 FR 29988, June 7, 1995, unless otherwise noted.



Sec. 21.1  Policy.

    (a) The Department of State may indemnify an employee for any 
verdict, judgment, or other monetary award which is rendered against 
such employee, provided that the conduct giving rise to the verdict, 
judgment, or award was taken within the scope of employment and that 
such indemnification is in the interest of the United States, as 
determined as a matter of discretion by the Under Secretary for 
Management or his or her designee.

[[Page 96]]

    (b) The Department of State may settle or compromise a personal 
damages claim against an employee by the payment of available funds at 
any time, provided the alleged conduct giving rise to the personal 
damages claim was taken within the scope of employment and that such 
settlement or compromise is in the interest of the United States, as 
determined as a matter of discretion by the Under Secretary for 
Management or his or her designee.
    (c) The Director General of the Foreign Service and Director of 
Personnel (``Director General'') shall be the designee of the Under 
Secretary for Management with respect to determinations under paragraphs 
(a) and (b) of this section in cases which involve:
    (1) Foreign courts or foreign administrative bodies and
    (2) Requests of less than five thousand dollars.
    (d) Absent exceptional circumstances as determined by the Under 
Secretary for Management or his or her designee, the Department will not 
entertain a request either to agree to indemnify or to settle a personal 
damages claim before entry of an adverse verdict, judgment, or award.
    (e) When an employee in the United States becomes aware that an 
action has been filed against the employee in his or her personal 
capacity as a result of conduct taken within the scope of his or her 
employment, the employee shall immediately notify the Department through 
the Executive Director of the Office of the Legal Adviser that such an 
action is pending. Employees overseas shall notify their Administrative 
Counselor who shall then notify the Assistant Legal Adviser for Special 
Functional Problems. Employees may be authorized to receive legal 
representation by the Department of Justice in accordance with 28 CFR 
50.15.
    (f) The employee may thereafter request indemnification to satisfy a 
verdict, judgment, or award entered against the employee. The employee 
shall submit a written request, with appropriate documentation including 
copies of the verdict, judgment, award, or settlement proposal if on 
appeal, to the Legal Adviser. Except as provided in paragraph (g) of 
this section, the Legal Adviser and the Director General shall then, in 
coordination with the Bureau of Finance and Management Policy, forward 
the request with their recommendation to the Under Secretary for 
Management for decision. The Legal Adviser may seek the views of the 
Department of Justice, as appropriate, in preparing this recommendation.
    (g) Cases in which the Director General is the designee under 
paragraph (c) of this section may be forwarded by the Assistant Legal 
Adviser for Special Functional Problems, along with the views of the 
employee and the bureau or post as appropriate, to the Director General 
for decision.
    (h) Personal services contractors of the Department are considered 
employees for purposes of the policy set forth in this part.
    (i) Any payment under this part either to indemnify a Department of 
State employee or to settle a personal damages claim shall be contingent 
upon the availability of appropriated funds.
    (j) In addition to the indemnification provisions contained in the 
regulations in this part, the Department will also follow any specific 
policies or regulations adopted with respect to damages awarded against 
Department health care personnel for malpractice claims within the scope 
of 22 U.S.C. 2702.

[60 FR 29988, June 7, 1995]

[[Page 97]]



                       SUBCHAPTER C_FEES AND FUNDS



PART 22_SCHEDULE OF FEES FOR CONSULAR SERVICES_DEPARTMENT OF STATE AND FOREIGN 

SERVICE--Table of Contents




Sec.
22.1 Schedule of fees.
22.2 Requests for services in the United States.
22.3 Remittances in the United States.
22.4 Requests for services, Foreign Service.
22.5 Remittances to Foreign Service posts.
22.6 Refund of fees.
22.7 Collection and return of fees.

    Authority: 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 et seq.; Pub. L. No. 108-447, 118 Stat. 2809 et 
seq.; 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).

    Source: 46 FR 58071, Nov. 30, 1981, unless otherwise noted.



Sec. 22.1  Schedule of fees.

    The following table sets forth the U.S. Department of State's 
Schedule of Fees for Consular Services:

                 Schedule of Fees for Consular Services
------------------------------------------------------------------------
              Item No.                               Fee
------------------------------------------------------------------------
                    Passport and Citizenship Services
------------------------------------------------------------------------
1. Passport Book Execution:          $25.
 Required for first-time applicants
 and others who must apply in
 person [01--Passport Book
 Execution].
2. Passport Book Application
 Services for:
    (a) Applicants age 16 or over    55.
     (including renewals) [02--
     Adult Passport Book].
    (b) Applicants under age 16      40.
     [03--Minor Passport Book].
    (c) Passport Book amendments     No fee.
     (extension of validity, name
     change, etc.) [04--Amendment].
    (d) Passport Book security       20.
     surcharge (enhanced border
     security fee) [05--Security
     Surcharge].
3. Expedited service: Passport       60
 processing within expedited
 processing period published on the
 Department's Web site (22 CFR
 51.56(b)) (not applicable abroad).
4. Exemptions: The following
 applicants are exempted from
 passport fees:
    (a) Officers or employees of     No fee.
     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].
    (b) U.S. citizen seamen who      No fee.
     require a passport in
     connection with their duties
     aboard an American flag vessel
     (22 U.S.C. 214) [05-Passport
     Exempt].
    (c) Widows, children, parents,   No fee.
     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].
    (d) Employees of the American    No fee.
     National Red Cross proceeding
     abroad as members of the Armed
     Forces of the United States
     (10 U.S.C. 2603) [05-Passport
     Exempt].
5. Travel Letter: Provided as an     No fee.
 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].
6. File search and verification of   60.
 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].
7. Application for Report of Birth   65.
 Abroad of a Citizen of the United
 States [08-Report Birth Abroad].
8. Passport security surcharge [09-  12.
 Passport Surcharge].
9. Passport Card Services:
    (a) Application fee for          20
     applicants age 16 or over
     [Adult Passport Card].
    (b) Application fee for          10
     applicants under age 16 [Minor
     Passport Card].
    (c) Execution fee [Passport      25
     Card Execution].
10. [Reserved]
------------------------------------------------------------------------
                       Overseas Citizens Services
         Arrests, Welfare and Whereabouts, and Related Services
------------------------------------------------------------------------
11. Arrest and prison visits.......  No fee.
12. Assistance regarding the         No fee.
 welfare and whereabouts of a U.S.
 citizen, including child custody
 inquiries and processing of
 repatriation and emergency dietary
 assistance loans.

[[Page 98]]

 
(Item no. 13 vacant)
------------------------------------------------------------------------
                        Death and Estate Services
------------------------------------------------------------------------
14. Assistance to next-of-kin:
    (a) After the death of a U.S.    No fee.
     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).
    (b) Making arrangements for a    Consular Time (Item 75) Plus
     deceased non-U.S. citizen        Expenses.
     family member (providing
     assistance in shipping or
     other disposition of remains
     of a non-U.S. citizen) [11-Non
     U.S.C. Death].
15. Issuance of Consular Mortuary    60.
 Certificate on behalf of a non-
 U.S. citizen [12-Non-U.S.C. Mort
 Cert].
16. Acting as a provisional
 conservator of estates of U.S.
 citizens:
    (a) Taking possession of         No fee.
     personal effects; making an
     inventory under an official
     seal (unless significant time
     and/or expenses incurred).
    (b) Overseeing the appraisal,    No fee.
     sale, and final disposition of
     the estate, including
     disbursing funds, forwarding
     securities, etc. (unless
     significant time and/or
     expenses incurred).
    (c) For services listed in 16    Consular Time (Item 75) and/or
     (a) or (b) when significant      Expenses.
     time and/or expenses are
     incurred [13-Estate Costs].
(Items nos. 17 through 20 vacant)
------------------------------------------------------------------------
                       Nonimmigrant Visa Services
------------------------------------------------------------------------
21. Nonimmigrant visa application
 and border crossing card
 processing fees (per person):
    (a) Nonimmigrant visa [21-MRV    131.
     Processing].
    (b) Border crossing card--10     131.
     year (age 15 and over) [22-131
     BCC 10 Year].
    (c) Border crossing card--5      13.
     year (under age 15). For
     Mexican citizen, if parent or
     guardian has or is applying
     for a border crossing card [23-
     BCC 5 Year].
22. Exemptions from nonimmigrant
 visa application processing fee:
    (a) Applicants for A, G, C-3,    No fee.
     NATO and diplomatic visas as
     defined in 22 CFR 41.26 [24-
     MRV Exempt].
    (b) Applicants for J visas       No fee.
     participating in official U.S.
     Government-sponsored
     educational and cultural
     exchanges [24-MRV Exempt].
    (c) Replacement machine-         No fee.
     readable visa when the
     original visa was not properly
     affixed or needs to be
     reissued through no fault of
     the applicant [24-MRV Exempt].
    (d) Applicants exempted by       No fee.
     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].
    (e) Applicants traveling to      No fee.
     provide charitable services as
     determined by the Department
     [24-MRV Exempt].
    (f) U.S. Government employees    No fee.
     traveling on official business
     [24-MRV Exempt].
    (g) A parent, sibling, spouse,   No fee.
     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].
23. Nonimmigrant visa issuance fee,  Reciprocal.
 including border-crossing cards
 [25-NIV Issuance Reciprocal].
24. Exemptions from nonimmigrant
 visa issuance fee:
    (a) An official representative   No fee.
     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].
    (b) An applicant transiting to   No fee.
     and from the United Nations
     Headquarters [26-NIV Issuance
     Exempt].
    (c) An applicant participating   No fee.
     in a U.S. Government-sponsored
     program [26-NIV Issuance
     Exempt].
    (d) An applicant traveling to    No fee.
     provide charitable services as
     determined by the Department
     [26-NIV Issuance Exempt].
25. Fraud Prevention and Detection   500.
 Fee for Visa applicant included in
 L blanket petition (principal
 applicant only) [27-NIV
 Adjudication, Blanket L].
(Items nos. 26 through 30 vacant)
------------------------------------------------------------------------
                   Immigrant and Special Visa Services
------------------------------------------------------------------------
31. Filing immigrant visa petition
 (collected for the Bureau of U.S.
 Citizenship and Immigration
 Services):

[[Page 99]]

 
    (a) Petition to classify status  185.
     of alien relative for issuance
     of immigrant visa [81-USCIS I-
     130 Petition].
    (b) Petition to classify orphan  525.
     as an immediate relative [82-
     USCIS I-600 Petition].
32. Immigrant visa application       355.
 processing fee (per person) [31-IV
 Application].
33. Diversity Visa Lottery           375.
 surcharge for lottery
 participation (per person applying
 for an immigrant visa as a result
 of the lottery program) [32-DV
 Processing].
34. Affidavit of Support Review      70.
 (only when AOS is reviewed
 domestically).
35. Special visa services:
    (a) Determining Returning        400.
     Resident Status [33-Returning
     Resident].
    (b) Transportation letter for    165.
     Legal Permanent Residents of
     U.S. [34-LPR Transportation
     Letter].
    (c) Waiver of 2-year residency   215.
     requirement [J Waiver].
    (d) Waiver of immigrant visa     250.
     ineligibility (collected for
     the Bureau of U.S. Citizenship
     and Immigration Services) [83-
     IV Waiver].
    (e) Refugee or significant       No fee.
     public benefit parole case
     processing [35-Refugee/Parole].
36. Immigrant visa security          45.
 surcharge [37-IV Surcharge].
(Items nos. 37 through 40 vacant)
------------------------------------------------------------------------
                          Documentary Services
------------------------------------------------------------------------
41. Providing notarial service:
    (a) First service (seal) [41-    30.
     Notarial].
    (b) Each additional seal         20.
     provided at the same time in
     connection with the same
     transaction [42-Additional
     Notarial].
42. Certification of a true copy or
 that no record of an official file
 can be located (by a post abroad):
    (a) First copy [43-Certified     30.
     Copy].
    (b) Each additional copy         20.
     provided at the same time [44-
     Additional Copy].
43. Provision of documents,
 certified copies of documents, and
 other certifications by the
 Department of State (domestic):
    (a) Documents relating to        30.
     births, marriages, and deaths
     of U.S. citizens abroad
     originally issued by a U.S.
     Embassy or Consulate.
    (b) Issuance of Replacement      30.
     Report of Birth Abroad.
    (c) Certified copies of          30.
     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.
    (d) Certifying a copy of a       30.
     document or extract from an
     official passport record.
    (e) Certifying that no record    30.
     of an official file can be
     located [45-Brth/Mar/Death/No
     Record].
    (f) Each additional copy         20.
     provided at same time [46-
     Additional Cert].
44. Authentications (by posts
 abroad):
    (a) Authenticating a foreign     30.
     notary or other foreign
     official seal or signature.
    (b) Authenticating a U.S.        30.
     Federal, State, or territorial
     seal.
    (c) Certifying to the official   30.
     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.
    (d) Each authentication [47-     30.
     Authentication].
45. Exemptions: Notarial,
 certification, and authentication
 fees or passport file search fees
 will not be charged when the
 service is performed:
    (a) At the direct request of     No fee.
     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].
    (b) With respect to documents    No fee.
     to be presented by claimants,
     beneficiaries, or their
     witnesses in connection with
     obtaining Federal, State, or
     municipal benefits [48-
     Documents Exempt].
    (c) For U.S. citizens outside    No fee.
     the United States preparing
     ballots for any public
     election in the United States
     or any of its territories [48-
     Documents Exempt].
    (d) At the direct request of a   No fee.
     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].
    (e) At the direct request of a   No fee.
     foreign government official
     when appropriate or as a
     reciprocal courtesy [48-
     Documents Exempt].
    (f) At the request of direct     No fee.
     hire U.S. Government
     personnel, Peace Corps
     volunteers, or their
     dependents stationed or
     traveling officially in a
     foreign country [48-Documents
     Exempt].
    (g) With respect to documents    No fee.
     whose production is ordered by
     a court of competent
     jurisdiction [48-Documents
     Exempt].
    (h) With respect to affidavits   No fee.
     of support for immigrant visa
     applications [48-Documents
     Exempt].
    (i) With respect to endorsing    No fee.
     U.S. Savings Bonds
     Certificates [48-Documents
     Exempt].
(Items nos. 46 through 50 vacant)
------------------------------------------------------------------------

[[Page 100]]

 
                      Judicial Assistance Services
------------------------------------------------------------------------
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:
    [51-Letters Rogatory]..........  735.
    [52-FSIA]......................  735.
52. Taking depositions or executing
 commissions to take testimony:
    (a) Scheduling/arranging         475.
     appointments for depositions,
     including depositions by video
     teleconference (per daily
     appointment) [53-Arrange Depo].
    (b) Attending or taking          265 Per Hour Plus Expenses.
     depositions, or executing
     commissions to take testimony
     (per hour or part thereof) [54-
     Depose/Hourly].
    (c) Swearing in witnesses for    265.
     telephone depositions [55-
     Telephone Oath].
    (d) Supervising telephone        265 Per Hour Plus Expenses.
     depositions (per hour or part
     thereof over the first hour)
     [56-Supervise Tel Depo].
    (e) Providing seal and           70.
     certification of depositions
     [57-Deposition Cert].
53. Exemptions: Deposition or
 executing commissions to take
 testimony. Fees will not be
 charged when the service is
 performed:
    (a) At the direct request of     No fee.
     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].
    (b) Executing commissions to     No fee.
     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].
(Items nos. 54 through 60 vacant)
------------------------------------------------------------------------
                 Services Relating to Vessels and Seamen
------------------------------------------------------------------------
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:
    [61-Shipping Bill of Sale].....  Consular Time (Item 75) Plus
                                      Expenses.
    [62-Shipping Consular Radio      Time (Item 75) Plus Expenses.
     LISC].
    [63-Shipping Cert AM Own]......  Consular Time (Item 75) Plus
                                      Expenses.
    [64-Shipping Misc].............  Consular Time (Item 75) Plus
                                      Expenses.
(Items nos. 62 through 70 vacant)
------------------------------------------------------------------------
                         Administrative Services
------------------------------------------------------------------------
71. Non-emergency telephone calls    Long Distance Charge Plus $10.
 [70-Toll Call Cost] [71-Toll Cost
 Surcharge].
72. Setting up and maintaining a     30.
 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].
73. Transportation charges incurred  Expenses Incurred.
 in the performance of fee and no-
 fee services when appropriate and
 necessary [73-Transportation].
74. Return check processing fee [74- 25.
 Return Check].
75. Consular time charges: As        265.
 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].
76. Photocopies (per page) [76-      1.
 Photocopy].
(Items nos. 77 through 80 vacant)
------------------------------------------------------------------------


[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; 74 FR 47727, Sept. 17, 2009]



Sec. 22.2  Requests for services in the United States.

    (a) Requests for records. Requests by the file subject or the 
individual's authorized agent for services involving U.S. passport 
applications and related records, including consular birth, marriage and 
death records and authentication of other passport file documents, as 
well as records of births, marriages and deaths within the former Canal 
Zone of Panama recorded and maintained by the Canal Zone Government from 
1904 to September 30, 1979, shall be addressed to Passport

[[Page 101]]

Services, Correspondence Branch, Department of State, Washington, D.C. 
20524. Requests for consular birth records should specify whether a 
Consular Report of Birth (Form FS 240, or long form) or Certification of 
Birth (Form DS 1350, or short form) is desired. Advance remittance of 
the exact fee is required for each service.
    (b) Authentication services. Requests for Department of State 
authentication of documents other than passport file documents must be 
accompanied by remittance of the exact total fee chargeable and 
addressed to the Authentication Officer, Department of State, 
Washington, DC 20520.

[46 FR 58071, Nov. 30, 1981, as amended at 64 FR 66770, Nov. 30, 1999]



Sec. 22.3  Remittances in the United States.

    (a) Type of remittance. Remittances shall be in the form of: (1) 
Check or bank draft drawn on a bank in the United States; (2) money 
order--postal, international or bank; or (3) U.S. currency. Remittances 
shall be made payable to the order of the Department of State. The 
Department will assume no responsibility for cash which is lost in the 
mail.
    (b) Exact payment of fees. Fees must be paid in full prior to 
issuance of requested documents. If uncertainty as to the existence of a 
record or as to the number of sheets to be copied precludes remitting 
the exact fee chargeable with the request, the Department of State will 
inform the interested party of the exact amount required.



Sec. 22.4  Requests for services, Foreign Service.

    Officers of the Foreign Service shall charge for official services 
performed abroad at the rates prescribed in this schedule, in coin of 
the United States or at its representative value in exchange (22 U.S.C. 
1202). For definition of representative value in exchange, see Sec. 
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).



Sec. 22.5  Remittances to Foreign Service posts.

    Remittances to Foreign Service posts from persons in the United 
States in payment of offical fees and charges or for the purpose of 
establishing deposits in advance of rendition of services shall be in a 
form acceptable to the post, drawn payable to the American Embassy (name 
of city), American Consulate General (name of city) or American 
Consulate (name of city), as the case may be. This will permit cashing 
of negotiable instruments for deposit in the Treasury when not 
negotiated locally. See Sec. 23.2 of this chapter.
    (a) Time at which fees become payable. Fees are due and payble prior 
to issue or delivery to the interested party of a signed document, a 
copy of a record, or other paper representative of a service performed.
    (b) Receipt for fees; register of services. Every officer of the 
Foreign Service responsible for the performance of services as 
enumerated in the Schedule of Fees for Consular Services, Department of 
State and Foreign Service (Sec. 22.1), shall give receipts for fees 
collected for the official services rendered, specifying the nature of 
the service and numbered to correspond with entries in a register 
maintained for the purpose (22 U.S.C. 1192, 1193, and 1194). The 
register serves as a record of official acts performed by officers of 
the Foreign Service in a governmental or notarial capacity, 
corresponding in this regard with the record which notaries are usually 
expected or required to keep of their official acts. See Sec. 92.2 of 
this chapter.
    (c) Deposits to guarantee payment of fees or incidental costs. When 
the

[[Page 102]]

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.



Sec. 22.6  Refund of fees.

    (a) Fees which have been collected for deposit in the Treasury are 
refundable:
    (1) As specifically authorized by law (See 22 U.S.C. 214a concerning 
passport fees erroneously charged persons excused from payment and 46 
U.S.C. 8 concerning fees improperly imposed on vessels and seamen);
    (2) When the principal officer at the consular post where the fee 
was collected (or the officer in charge of the consular section at a 
combined diplomatic/consular post) finds upon review of the facts that 
the collection was erroneous under applicable law; and
    (3) Where determination is made by the Department of State with a 
view to payment of a refund in the United States in cases which it is 
impracticable to have the facts reviewed and refund effected by and at 
the direction of the responsible consular office. See Sec. 13.1 of this 
chapter concerning refunds of fees improperly exacted by consular 
officers who have neglected to return the same.
    (b) Refunds of $5.00 or less will not be paid to the remitter unless 
a claim is specifically filed at the time of payment for the excess 
amount. An automatic refund on overpayments due to misinformation or 
mistakes on the part of the Department of State will be made.

[52 FR 29515, Aug. 10, 1987, as amended at 65 FR 14212, Mar. 16, 2000]



Sec. 22.7  Collection and return of fees.

    No fees other than those prescribed in the Schedule of Fees, Sec. 
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 Sec. 22.5(b). Collections for 
transportation and other expenses necessary for performance of services 
or for Interested Party toll telephone calls shall be refunded to post 
allotment accounts and made available for meeting such expenses.



PART 23_FINANCE AND ACCOUNTING--Table of Contents




Sec.
23.1 Remittances made payable to the Department of State.
23.2 Endorsing remittances for deposit in the Treasury.
23.3 Refunds.
23.4 Representative value in exchange.
23.5 Claims for settlement by Department of State or General Accounting 
          Office.

    Authority: 22 U.S.C. 2651a.

    Source: 22 FR 10793, Dec. 27, 1957, unless otherwise noted.



Sec. 23.1  Remittances made payable to the Department of State.

    Except as otherwise specified in this title, remittances of moneys 
shall be drawn payable to the Department of State and sent to the 
Department for action and deposit. (See Sec. Sec. 21.2, 22.2, and 51.40 
of this chapter.)



Sec. 23.2  Endorsing remittances for deposit in the Treasury.

    The Office of Finance--Cashier Unit, the Authentication Office, the 
Passport Office or Passport Agency, American Embassy, American Legation, 
American consular office, or other office or unit of the Department of 
State authorized and required to deposit funds in the Treasury of the 
United States, is hereby authorized to endorse, or to have endorsed, to 
the order of the Treasurer of the United States by appropriate stamp, 
checks, drafts, money orders, or other forms of remittance, regardless 
of how drawn, which are for payment to the Department of State for 
deposit in the Treasury of the United States, including those payable to 
the Secretary of State.

[[Page 103]]



Sec. 23.3  Refunds.

    (a) Rectifications and readjustments. See Sec. 22.6 of this chapter 
for outline of circumstances under which fees which have been collected 
for deposit in the Treasury may be refunded.
    (b) Refund of wrongful exactions. See Sec. 13.1 of this chapter 
concerning recovery from consular officers of amounts wrongfully exacted 
and withheld by them.

[22 FR 10793, Dec. 27, 1957, as amended at 65 FR 14212, Mar. 16, 2000]



Sec. 23.4  Representative value in exchange.

    Representative value in exchange for the collection of a fee means 
foreign currency equivalent to the prescribed United States dollar fee 
at the current rate of exchange at the time and place of payment of the 
fee. ``Current rate'' of exchange for this purpose means the bank 
selling rate at which the foreign bank will sell the number of United 
States dollars required to liquidate the obligation to the United States 
for the Foreign Service fee.



Sec. 23.5  Claims for settlement by Department of State or General Accounting 

Office.

    Claims for settlement by the Department of State or by the General 
Accounting Office shall be submitted to the Department in duplicate over 
the handwritten signature, together with the post office address of the 
claimant, and with appropriate recommendations of the officer of the 
Foreign Service, for items such as:
    (a) Refunds of amounts representing payroll deductions such as for 
any retirement and disability fund;
    (b) Amounts due deceased, incompetent, or insolvent persons 
including payees or bona fide holders of unpaid Government checks;
    (c) Amounts claimed from the Government when questions of fact 
affect either the amount payable or the terms of payment, when for any 
reason settlement cannot or should not be affected at the Foreign 
Service office; and
    (d) Amounts of checks, owned by living payees or bona fide holders, 
which have been covered into outstanding liabilities. The Foreign 
Service post or the Department of State shall be consulted before 
preparing the claim to ascertain whether any special form is required to 
be used. Claims for unpaid compensation of deceased alien employees 
shall be forwarded to the respective Foreign Service post.

[[Page 104]]



                 SUBCHAPTER D_CLAIMS AND STOLEN PROPERTY



PART 33_FISHERMEN'S PROTECTIVE ACT GUARANTY FUND PROCEDURES UNDER SECTION 7--

Table of Contents




Sec.
33.1 Purpose.
33.2 Definitions.
33.3 Eligibility.
33.4 Applications.
33.5 Guaranty agreements.
33.6 Fees.
33.7 Conditions for claims.
33.8 Claim procedures.
33.9 Amount of award.
33.10 Payments.
33.11 Records.
33.12 Penalties.

    Authority: 22 U.S.C. 1977.

    Source: 61 FR 49967, Sept. 24, 1996, unless otherwise noted.



Sec. 33.1  Purpose.

    These rules clarify procedures for the administration of Section 7 
of the Fishermen's Protective Act of 1967. Section 7 of the Act 
establishes a Fishermen's Guaranty Fund to reimburse owners and 
charterers of United States commercial fishing vessels for certain 
losses and costs caused by the seizure and detention of their vessels by 
foreign countries under certain claims to jurisdiction not recognized by 
the United States.



Sec. 33.2  Definitions.

    For the purpose of this part, the following terms mean:
    Act. The Fishermen's Protective Act of 1967 (22 U.S.C. 1971 et 
seq.).
    Capital equipment. Equipment or other property which may be 
depreciated for income tax purposes.
    Depreciated replacement costs. The present replacement cost of 
capital equipment after being depreciated on a straight line basis over 
the equipment's depreciable life, which is standardized at ten years.
    Downtime. The time a vessel normally would be in port or transiting 
to and from the fishing grounds.
    Expendable items. Any property, excluding that which may be 
depreciated for income tax purposes, which is maintained in inventory or 
expensed for tax purposes.
    Fund. The Fishermen's Guaranty Fund established in the U.S. Treasury 
under section 7(c) of the Act (22 U.S.C. 1977(c)).
    Market value. The price property would command in a market, at the 
time of property loss, assuming a seller willing to sell and buyer 
willing to buy.
    Other direct charge. Any levy which is imposed in addition to, or in 
lieu of any fine, license fee, registration fee, or other charge.
    Owner. The owner or charterer of a commercial fishing vessel.
    Secretary. The Secretary of State or the designee of the Secretary 
of State.
    Seizure. Arrest of a fishing vessel by a foreign country for 
allegedly illegal fishing.
    U.S. fishing vessel. Any private vessel documented or certified 
under the laws of the United States as a commercial fishing vessel.



Sec. 33.3  Eligibility.

    Any owner or charterer of a U.S. fishing vessel is eligible to apply 
for an agreement with the Secretary providing for a guarantee in 
accordance with section 7 of the Act.



Sec. 33.4  Applications.

    (a) Applicant. An eligible applicant for a guaranty agreement must:
    (1) Own or charter a U.S. fishing vessel; and
    (2) Submit with his application the fee specified in Sec. 33.6 
below.
    (b) Application forms. Application forms may be obtained by 
contacting the Office of Marine Conservation, Bureau of Oceans and 
International Environmental and Scientific Affairs, Room 7820, U.S. 
Department of State, Washington, DC 20520-7818; Telephone 202-647-3941.
    (c) Where to apply. Applications must be submitted to the Director, 
Office of marine Conservation, Bureau of Oceans and International 
Environmental and Scientific Affairs, Room 7820, U.S. Department of 
State, Washington, DC 20520-7818.

[[Page 105]]

    (d) Application approval. Application approval will be by execution 
of the guaranty agreement by the Secretary or by the Secretary's 
designee.



Sec. 33.5  Guaranty agreements.

    (a) Period in effect. Agreements are effective for a Fiscal Year 
beginning October 1 and ending on the next September 30. Applications 
submitted after October 1 are effective from the date the application 
and fee are mailed (determined by the postmark) through September 30.
    (b) Guaranty agreement transfer. A guaranty agreement may, with the 
Secretary's prior consent, be transferred when a vessel which is the 
subject of a guaranty agreement is transferred to a new owner if the 
transfer occurs during the agreement period.
    (c) Guaranty agreement renewal. A guaranty agreement may be renewed 
for the next agreement year by submitting an application form with the 
appropriate fee for the next year in accordance with the Secretary's 
annually published requirements regarding fees. Renewals are subject to 
the Secretary's approval.
    (d) Provisions of the agreement. The agreement will provide for 
reimbursement for certain losses caused by foreign countries' seizure 
and detention of U.S. fishing vessels on the basis of claims to 
jurisdiction which are not recognized by the United States. Recent 
amendments to the Magnuson Fishery Conservation and Management Act (16 
U.S.C. (1801 et seq.) assert U.S. jurisdiction over highly migratory 
species of tuna in the U.S. exclusive economic zone (EEZ). Accordingly, 
as a matter of international law, the United States now recognizes other 
coastal states' claims to jurisdiction over tuna in their EEZ'S. This 
change directly affect certification of claims filed under the 
Fishermen's Protective Act. Participants are advised that this means 
that the Department will no longer certify for payment claims resulting 
from the seizure of a U.S. vessel while such vessel was fishing for tuna 
within the exclusive economic zone of another country in violation of 
that country's laws. Claims for detentions or seizures based on other 
claims to jurisdiction not recognized by the United States, or on the 
basis of claims to jurisdiction recognized by the United States but 
exercised in a manner inconsistent with international law as recognized 
by the United states, may still be certified by the Department.



Sec. 33.6  Fees.

    (a) General. Fees provide for administrative costs and payment of 
claims. Fees are set annually on the basis of past and anticipated claim 
experience. The annual agreement year for which fees are payable starts 
on October 1 and ends on September 30 of the following year.
    (b) Amount and payment. The amount of each annual fee or adjusted 
fee will be established by the Office Director of the Office of Marine 
Conservation, Bureau of Oceans and International Environmental and 
Scientific Affairs, by publication of a notice in the Federal Register. 
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.
    (c) Adjustment and refund. Fees may be adjusted at any time to 
reflect actual seizure and detention experience for which claims are 
anticipated. Failure to submit adjusted fees will result in agreement 
termination as of the date the adjusted fee is payable. No fees will be 
refunded after an agreement is executed by the Secretary.
    (d) Disposition. All fees will be deposited in the Fishermen's 
Guaranty Fund. They will remain available without fiscal year limitation 
to carry out section 7 of the Act. Claims will be paid from fees and 
from appropriated funds, if any. Fees not required to pay administrative 
costs or claims may be invested in U.S. obligations. All earnings will 
be credited to the Fishermen's Guaranty Fund.



Sec. 33.7  Conditions for claims.

    (a) Unless there is clear and convincing credible evidence that the 
seizure did not meet the requirements of

[[Page 106]]

the Act, payment of claims will be made when:
    (1) A covered vessel is seized by a foreign country under conditions 
specified in the Act and the guaranty agreement; and
    (2) The incident occurred during the period the guaranty agreement 
was in force for the vessel involved.
    (b) Payments will be made to the owner for:
    (1) All actual costs (except those covered by section 3 of the Act 
or reimbursable from some other source) incurred by the owner during the 
seizure or detention period as a direct result thereof, including:
    (i) Damage to, or destruction of, the vessel or its equipment; or
    (ii) Loss or confiscation of the vessel or its equipment; and
    (iii) Dockage fees or utilities;
    (2) The market value of fish or shellfish caught before seizure of 
the vessel and confiscated or spoiled during the period of detention; 
and
    (3) Up to 50 percent of the vessel's gross income lost as a direct 
result of the seizure and detention.
    (c) The exceptions are that no payment will be made from the Fund 
for a seizure which is:
    (1) Covered by any other provision of law (for example, fines, 
license fees, registration fees, or other direct charges payable under 
section 3 of the Act);
    (2) Made by a country at war with the United States;
    (3) In accordance with any applicable convention or treaty, if that 
treaty or convention was made with the advice and consent of the Senate 
and was in force and effect for the United States and the seizing 
country at the time of the seizure;
    (4) Which occurs before the guaranty agreement's effective date or 
after its termination;
    (5) For which other sources of alternative reimbursement have not 
first been fully pursued (for example, the insurance coverage required 
by the agreement and valid claims under any law);
    (6) For which material requirements of the guaranty agreement, the 
Act, or the program regulations have not been fully fulfilled; or
    (7) In the view of the Department of State occurred because the 
seized vessel was undermining or diminishing the effectiveness of 
international conservation and management measures recognized by the 
United States, or otherwise contributing to stock conservation problems 
pending the establishment of such measures.



Sec. 33.8  Claim procedures.

    (a) Where and when to apply. Claims must be submitted to the Office 
Director, Office of Marine Conservation, Bureau of Oceans and 
International Environmental and Scientific Affairs, Room 7820, U.S. 
Department of State, Washington, DC 20520-7818. Claims must be submitted 
within ninety (90) days after the vessel's release. Requests for 
extension of the filing deadline must be in writing and approved by the 
Office Director, Office of Marine Conservation, Bureau of Oceans and 
International Environmental and Scientific Affairs.
    (b) Contents of claim. All material allegations of a claim must be 
supported by documentary evidence. Foreign language documents must be 
accompanied by an authenticated English translation. Claims must 
include:
    (1) The captain's sworn statement about the exact location and 
activity of the vessel when seized;
    (2) Certified copies of charges, hearings, and findings by the 
government seizing the vessel;
    (3) A detailed computation of all actual costs directly resulting 
from the seizure and detention, supported by receipts, affidavits, or 
other documentation acceptable to the Office Director, Office of Marine 
Conservation, Bureau of Oceans and International Environmental and 
Scientific Affairs;
    (4) A detailed computation of lost income claimed, including:
    (i) The date and time seized and released;
    (ii) The number of miles and running time from the point of seizure 
to the point of detention;
    (iii) The total fishing time lost (explain in detail if lost fishing 
time claimed is any greater than the elapsed time from seizure to the 
time required after release to return to the point of seizure);

[[Page 107]]

    (iv) The tonnage of catch on board at the time of seizure;
    (v) The vessel's average catch-per-day's fishing for the three 
calendar years preceding the seizure;
    (vi) The vessel's average downtime between fishing trips for the 
three calendar years preceding the seizure; and
    (vii) The price-per-pound for the catch on the first day the vessel 
returns to port after the seizure and detention unless there is a pre-
negotiated price-per-pound with a processor, in which case the pre-
negotiated price must be documented; and
    (5) Documentation for confiscated, damaged, destroyed, or stolen 
equipment, including:
    (i) The date and cost of acquisition supported by invoices or other 
acceptable proof of ownership; and
    (ii) An estimate from a commercial source of the replacement or 
repair cost.
    (c) Burden of proof. The claimant has the burden of proving all 
aspects of the claim, except in cases of dispute over the facts of the 
seizure where the claimant shall have the presumption that the seizure 
was eligible unless there is clear and convincing credible evidence that 
the seizure did not meet the eligibility standards of the Act.



Sec. 33.9  Amount of award.

    (a) Lost fishing time. Compensation is limited to 50 percent of the 
gross income lost as a direct result of the seizure and detention, based 
on the value of the average catch-per-day's fishing during the three 
most recent calendar years immediately preceding the seizure as 
determined by the Secretary, based on catch rates on comparable vessels 
in comparable fisheries. The compensable period for cases of seizure and 
detention not resulting in vessels confiscation is limited to the 
elapsed time from seizure to the time after release when the vessel 
could reasonably be expected to return to the point of seizure. The 
compensable period in cases where the vessel is confiscated is limited 
to the elapsed time from seizure through the date of confiscation, plus 
an additional period to purchase a replacement vessel and return to the 
point of seizure. In no case can the additional period exceed 120 days.
    (1) Compensation for confiscation of vessels, where no buy-back has 
occurred, will be based on market value which will be determined by 
averaging estimates of market value obtained from as many vessel 
surveyors or brokers as the Secretary deems practicable;
    (2) Compensation for capital equipment other than vessel, will be 
based on depreciated replacement cost;
    (3) Compensation for expendable items and crew's belongings will be 
50 percent of their replacement costs; and
    (4) Compensation for confiscated catch will be for full value, based 
on the price-per-pound.
    (b) Fuel expense. Compensation for fuel expenses will be based on 
the purchase price, the time required to run to and from the fishing 
grounds, the detention time in port, and the documented fuel consumption 
of the vessel.
    (c) Stolen or confiscated property. If the claimant was required to 
buy back confiscated property from the foreign country, the claimant may 
apply for reimbursement of such charges under section 3 of the Act. Any 
other property confiscated is reimbursable from this Guaranty Fund. 
Confiscated property is divided into the following categories:
    (1) Compensation for confiscation of vessels, where no buy-back has 
occurred, will be based on market value which will be determined by 
averaging estimates of market value obtained from as many vessel 
surveyors or brokers as the Secretary deems practicable;
    (2) Compensation for capital equipment other than a vessel, will be 
based on depreciated replacement cost;
    (3) Compensation for expendable items and crew's belongings will be 
50 percent of their replacement cost; and
    (4) Compensation for confiscated catch will be for full value, based 
on the price-per-pound.
    (d) Insurance proceeds. No payments will be made from the Fund for 
losses covered by any policy of insurance or other provisions of law.
    (e) [Reserved]
    (f) Appeals. All determinations under this section are final and are 
not subject to arbitration or appeal.

[[Page 108]]



Sec. 33.10  Payments.

    The Office Director, Office of Marine Conservation, Bureau of Oceans 
and International Environmental and Scientific Affairs, will pay the 
claimant the amount calculated under Sec. 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.



Sec. 33.11  Records.

    The Office Director, Office of Marine Conservation, Bureau of Oceans 
and International Environmental and Scientific Affairs will have the 
right to inspect claimants' books and records as a precondition to 
approving claims. All claims must contain written authorization of the 
guaranteed party for any international, federal, state, or local 
governmental Agencies to provide the Office Director, Office of Marine 
Conservation, Bureau of Oceans and International Environmental and 
Scientific Affairs any data or information pertinent to a claim.



Sec. 33.12  Penalties.

    Persons who willfully make any false or misleading statement or 
representation to obtain compensation from the Fund are subject to 
criminal prosecution under 22 U.S.C. 1980(g). This provides penalties up 
to $25,000 or imprisonment for up to one year, or both. Any evidence of 
criminal conduct will be promptly forwarded to the United States 
Department of Justice for action. Additionally, misrepresentation, 
concealment, or fraud, or acts intentionally designed to result in 
seizure, may void the guaranty agreement.



PART 34_DEBT COLLECTION--Table of Contents




                       Subpart A_General Provision

Sec.
34.1 Purpose.
34.2 Scope.
34.3 Exceptions.
34.4 Definitions.
34.5 Other procedures or actions.
34.6 Interest, penalties, and administrative costs.
34.7 Collection in installments.

                      Subpart B_Collection Actions

34.8 Notice and demand for payment.
34.9 Request for internal administrative review.
34.10 Collection methods.

                         Subpart C_Salary Offset

34.11 Scope.
34.12 Coordinating offset with another Federal agency.
34.13 Notice requirements before offset.
34.14 Request for an outside hearing for certain debts.
34.15 Outside hearing.
34.16 Procedures for salary offset.
34.17 Non-waiver of rights by payment.

                    Subpart D_Collection Adjustments

34.18 Waivers of indebtedness.
34.19 Compromise.
34.20 Suspension.
34.21 Termination.
34.22 Discharge.
34.23 Bankruptcy.
34.24 Refunds.

    Authority: 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.

    Source: 71 FR 16482, Apr. 3, 2006, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 34.1  Purpose.

    These regulations prescribe the procedures to be used by the United 
States Department of State (STATE) in the collection of debts owed to 
STATE and to the United States.



Sec. 34.2  Scope.

    (a) Except as set forth in this part or otherwise provided by law, 
STATE will conduct administrative actions to collect debts (including 
offset, compromise, suspension, termination, disclosure and referral) in 
accordance

[[Page 109]]

with the Federal Claims Collection Standards (FCCS) of the Department of 
the Treasury and Department of Justice, 31 CFR parts 900-904.
    (b) This part is not applicable to STATE claims against another 
Federal agency, any foreign country or any political subdivision 
thereof, or any public international organization.



Sec. 34.3  Exceptions.

    (a) Debts arising from the audit of transportation accounts pursuant 
to 31 U.S.C. 3726 shall be determined, collected, compromised, 
terminated, or settled in accordance with the regulations published at 
41 CFR part 102-118.
    (b) Debts arising out of acquisition contracts subject to the 
Federal Acquisition Regulation (FAR) shall be determined, collected, 
compromised, terminated, or settled in accordance with those regulations 
(see 48 CFR part 32).
    (c) Debts based in whole or in part on conduct in violation of the 
antitrust laws, or in regard to which there is an indication of fraud, 
presentation of a false claim, or misrepresentation on the part of the 
debtor or any other party having an interest in the claim, shall be 
referred to the Department of Justice for compromise, suspension, or 
termination of collection action.
    (d) Tax debts are excluded from the coverage of this regulation.



Sec. 34.4  Definitions.

    For purposes of the section:
    (a) Administrative offset means withholding funds payable by the 
United States to, or held by the United States for, a person to satisfy 
a debt owed by the person to the United States.
    (b) Administrative wage garnishment means the process by which a 
Federal agency orders a non-Federal employer to withhold amounts from a 
debtor's wages to satisfy a debt owed to the United States.
    (c) Compromise means that the creditor agency accepts less than the 
full amount of an outstanding debt in full satisfaction of the entire 
amount of the debt.
    (d) Creditor agency means the Federal agency to which a debt is 
owed.
    (e) Debt or claim means an amount of money which has been determined 
to be owed to the United States from any person. A debtor's liability 
arising from a particular contract or transaction shall be considered a 
single claim for purposes of the monetary ceilings of the FCCS.
    (f) Debtor means a person who owes the Federal government money.
    (g) Delinquent debt means a debt that has not been paid by the date 
specified in STATE's written notification or applicable contractual 
agreement, unless other satisfactory arrangements have been made by that 
date, or that has not been paid in accordance with a payment agreement 
with STATE.
    (h) Discharge means the release of a debtor from personal liability 
for a debt. Further collection action is prohibited.
    (i) Disposable pay means the amount that remains from an employee's 
current basic pay, special pay, incentive pay, retired pay, retainer 
pay, or in the case of an employee not entitled to basic pay, other 
authorized pay remaining after required deductions for Federal, State 
and local income taxes; Social Security taxes, including Medicare taxes; 
Federal retirement programs; normal premiums for life and health 
insurance benefits and such other deductions that are required by law to 
be withheld, excluding garnishments.
    (j) FCCS means the Federal Claims Collection Standards published 
jointly by the Departments of the Treasury and Justice and codified at 
31 CFR parts 900-904.
    (k) Person means an individual, corporation, partnership, 
association, organization, State or local government, or any other type 
of entity other than a Federal agency, Foreign Government, or public 
international organization.
    (l) Salary offset means the withholding of amounts from the current 
pay account of a Federal employee to satisfy a debt owed by that 
employee to the United States.
    (m) Suspension means the temporary cessation of active debt 
collection pending the occurrence of an anticipated event.
    (n) Termination means the cessation of all active debt collection 
action for the foreseeable future.
    (o) Waiver means a decision to forgo collection of a debt owed to 
the United

[[Page 110]]

States, as provided for by a specific statute and according to the 
standards set out under that statute.



Sec. 34.5  Other procedures or actions.

    (a) Nothing contained in this regulation is intended to require 
STATE to duplicate administrative proceedings required by contract or 
other laws or regulations.
    (b) Nothing in this regulation is intended to preclude utilization 
of informal administrative actions or remedies which may be available.
    (c) Nothing contained in this regulation is intended to deter STATE 
from demanding the return of specific property or from demanding the 
return of the property or the payment of its value.
    (d) The failure of STATE to comply with any provision in this 
regulation shall not serve as defense to the debt.



Sec. 34.6  Interest, penalties, and administrative costs.

    Except as otherwise provided by statute, contract or excluded in 
accordance with the FCCS, STATE will assess:
    (a) Interest on delinquent debts in accordance with 31 CFR 901.9.
    (b) Penalties at the rate of 6 percent a year or such other rate as 
authorized by law on any portion of a debt that is delinquent for more 
than 90 days.
    (c) Administrative costs to cover the costs of processing and 
calculating delinquent debts.
    (d) Late payment charges under paragraphs (a) and (b) of this 
section shall be computed from the date of delinquency.
    (e) When a debt is paid in partial or installment payments, amounts 
received shall be applied first to outstanding penalty and 
administrative cost charges, second to accrued interest, and then to 
outstanding principal.
    (f) STATE shall consider waiver of interest, penalties and/or 
administrative costs in accordance with the FCCS, 31 CFR 901.9(g).



Sec. 34.7  Collection in installments.

    Whenever feasible, and except as required otherwise by law, debts 
owed to the United States, together with interest, penalties, and 
administrative costs as required by this regulation, should be collected 
in one lump sum. This is true whether the debt is being collected under 
administrative offset, including salary offset, or by another method, 
including voluntary payment. However, if the debtor is financially 
unable to pay the indebtedness in one lump sum, payment may be accepted 
in regular installments. If STATE agrees to accept payment in 
installments, it may require a legally enforceable written agreement 
from the debtor that specifies all of the terms of the arrangement and 
which contains a provision accelerating the debt in the event the debtor 
defaults. The size and frequency of the payments should bear a 
reasonable relation to the size of the debt and ability of the debtor to 
pay. If possible, the installment payments should be sufficient in size 
and frequency to liquidate the Government's claim within 3 years.



                      Subpart B_Collection Actions



Sec. 34.8  Notice and demand for payment.

    (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.
    (b) The written notice shall inform the debtor of:
    (1) The basis of the debt;
    (2) The amount of the debt;
    (3) The date by which payment should be made to avoid the imposition 
of interest, penalties and administrative costs, and the enforced 
collection actions described in paragraph (b)(7) of this section;
    (4) The applicable standards for imposing of interest, penalties and 
administrative costs to delinquent debts;
    (5) STATE's readiness to discuss alternative payment arrangements 
and how the debtor may offer to enter into a written agreement to repay 
the debt under terms acceptable to STATE;
    (6) The name, address and telephone number of a contact person or 
office within STATE;

[[Page 111]]

    (7) STATE's intention to enforce collection by taking one or more of 
the following actions if the debtor fails to pay or otherwise resolve 
the debt:
    (i) Offset from Federal payments otherwise due to the debtor, 
including income tax refunds, salary, certain benefit payments, 
retirement, vendor payments, travel reimbursement and advances, and 
other Federal payments due from STATE, other Federal agencies, or 
through centralized disbursing from the Department of the Treasury;
    (ii) Referral to private collection agency
    (iii) Report to credit bureaus
    (iv) Administrative Wage Garnishment
    (v) Litigation by the Department of Justice
    (vi) Referral to the Financial Management Service of the Department 
of the Treasury for collection
    (vii) Liquidation of collateral
    (viii) Other actions as permitted by the FCCS and applicable law;
    (8) The debtor's right to inspect and copy records related to the 
debt;
    (9) The debtor's right to an internal review of STATE's 
determination that the debtor owes a debt or the amount of the debt;
    (10) The debtor's right, if any, to request waiver of collection of 
certain debts, as applicable (see Sec. 34.18);
    (11) Requirement that the debtor advise STATE of any bankruptcy 
proceeding of the debtor; and
    (12) Provision for refund of amounts collected if later decision 
finds that the amount of the debt is not owed or is waived.
    (c) Exceptions to notice requirements. STATE may omit from a notice 
to a debtor one or more of the provisions contained in paragraphs (b)(7) 
through (b)(12) of this section if STATE determines that any provision 
is not legally required given the collection remedies to be applied to a 
particular debt, or which have already been provided by prior notice, 
applicable agreement, or contract.



Sec. 34.9  Requests for internal administrative review.

    (a) For all collection methods for debts owed to STATE, the debtor 
may request a review within State of the existence or the amount of the 
debt. For offset of current Federal salary under 5 U.S.C. 5514 for 
certain debts, debtors may also request an outside hearing. See subpart 
C of this part. This subpart rather than subpart C applies to 
collections by salary offset for debts arising under 5 U.S.C. 5705 
(travel advances), 5 U.S.C. 4108 (training expenses), and other statutes 
specifically providing for collection by salary offset.
    (b) A debtor requesting an internal review shall do so in writing to 
the contact office by the payment due date stated within the initial 
notice sent under 34.8(b) or other applicable provision. The debtor's 
written request shall state the basis for the dispute and include any 
relevant documentation in support.
    (1) STATE will provide for an internal review of the debt by an 
appropriate official. The review may include examination of documents, 
internal discussions with relevant officials and discussion by letter or 
orally with the debtor, at STATE's discretion. An oral hearing may be 
provided when the matter cannot be decided on the documentary record 
because it involves issues of credibility or veracity. Unless otherwise 
required by law, such oral hearing shall not be a formal evidentiary 
hearing. If an oral hearing is appropriate, the time and location of the 
hearing shall be established by STATE. An oral hearing may be conducted, 
at the debtor's option, either in-person or by telephone conference. All 
travel expenses incurred by the debtor in connection with an in-person 
hearing will be borne by the debtor. All telephonic charges incurred 
during the hearing will be the responsibility of STATE. During the 
period of review, STATE may suspend collection activity, including the 
accrual of interest and penalties, on any disputed portion of the debt 
if STATE determines that suspension is in the Department's best interest 
or would serve equity and good conscience.
    (2) If after review STATE either sustains or amends its 
determination, it shall notify the debtor of its intent to collect the 
sustained or amended debt. If previously suspended, collection actions 
will be re-instituted unless payment of the sustained or amended amount 
is received or the debtor has

[[Page 112]]

made a proposal for a payment plan to which STATE agrees, by the date 
specified in the notification of STATE's decision.



Sec. 34.10  Collection methods.

    Upon completion of notice and provision of all due process rights as 
listed in 34.8(b) of this section and upon final determination of the 
existence and amount of a debt, unless other acceptable payment 
arrangements have been made or procedures under a specific statute 
apply, STATE shall collect the debt by one or more of the following 
methods:
    (a) Administrative offset. (1) Payments otherwise due the debtor 
from the United States shall be offset from the debt in accordance with 
31 CFR 901.3. These may be funds under the control of the Department of 
State or other Federal agencies. Collection may be made through 
centralized offset by the Financial Management Service (``FMS'') of the 
Department of the Treasury.
    (2) Such payments include but are not limited to vendor payments, 
salary, retirement, lump sum payments due upon Federal employment 
separation, travel reimbursements, tax refunds, loans or other 
assistance. For offset of Federal salary payments under 5 U.S.C. 5514 
for certain types of debt see subpart C of this part.
    (3) Administrative offset under this subsection does not apply to 
debts specified in the FCCS, 31 CFR 901.3(a)(2).
    (4) Before administrative offset is instituted by another Federal 
agency or the FMS, STATE shall certify in writing to that entity that 
the debt is past due and legally enforceable and that STATE has complied 
with all applicable due process and other requirements as described in 
this part and other Federal law and regulations.
    (5) Administrative offset of anticipated or future benefit payments 
under the Civil Service Retirement and Disability Fund will be requested 
by STATE pursuant to 5 CFR 831.1801-1808.
    (6) Expedited offset. STATE may effect an offset against a debtor 
prior to sending a notice to the debtor as described in Sec. 34.8, 
when:
    (i) The offset is in the nature of a recoupment,
    (ii) Offset is executed pursuant to procedures set out in the 
Contracts Disputes Act,
    (iii) Previous notice and opportunity for review have been given, or
    (iv) There is insufficient time before payment would be made to the 
debtor/payee to allow prior notice and an opportunity for review. In 
such case, STATE shall give the debtor notice and an opportunity for 
review as soon as practicable and shall promptly refund any money 
ultimately found not to have been owed to the Government.
    (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.
    (b) Referral to private collection agency. STATE may contract for 
collection services to recover delinquent debts, or transfer a 
delinquent debt to FMS for private collection action, pursuant to 31 
U.S.C. 3718, 22 U.S.C. 2716 and the FCCS, 31 CFR 901.5, as applicable. 
STATE will not use a collection agency to collect a debt owed by a 
currently employed or retired Federal employee, if collection by salary 
or annuity offset is available.
    (c) Disclosure to consumer reporting agencies. STATE may disclose 
delinquent debts to consumer reporting agencies and other automated 
databases in accordance with 31 U.S.C. 3711(e) and the FCCS, 31 CFR 
901.4, and in compliance with the Bankruptcy Code and the Privacy Act 5 
U.S.C. 552a.
    (d) Liquidation of Collateral, if applicable, in accordance with the 
FCCS, 31 CFR 901.7.
    (e) Suspension or revocation of eligibility for loans and loan 
guaranties, licenses, permits, or privileges in accordance with the 
FCCS, 31 CFR 901.6.

[[Page 113]]

    (f) Litigation. Debts may be referred to the Department of Justice 
for litigation for collection in accordance with the standards set forth 
in the FCCS, 31 CFR part 904.
    (g) Transfer to FMS. Debts delinquent more than 180 days shall be 
transferred to the Financial Management Service of the Department of the 
Treasury for collection by all available means. Debts delinquent less 
that 180 days may also be so transferred.
    (h) Administrative wage garnishment. STATE may collect debts from a 
non-Federal employee's wages by means of administrative wage garnishment 
in accordance with the requirements of 31 U.S.C. 3720D and 31 CFR 
285.11. All parts of 31 CFR 285.11 are incorporated by reference into 
these regulations, including the hearing procedures described in 31 CFR 
285.11(f).
    (i) Salary offset. See subpart C of this part.



                         Subpart C_Salary Offset



Sec. 34.11  Scope.

    (a) This subpart sets forth STATE's procedures for the collection of 
a Federal employee's current pay by salary offset to satisfy certain 
debts owed to the United States.
    (b) This subpart applies to:
    (1) Current employees of STATE and other agencies who owe debts to 
STATE;
    (2) Current employees of STATE who owe debts to other agencies.
    (c) This subpart does not apply to
    (1) Offset of a separating employee's final payments or Foreign 
Service annuity payments which are covered under administrative offset 
(See Sec. 34.10(a)),
    (2) Debts or claims arising under the Internal Revenue Code of 1954 
(26 U.S.C. 1 et seq.); the Social Security Act (42 U.S.C. 301 et seq.); 
the tariff laws of the United States.
    (3) Any adjustment to pay arising out of an employee's election of 
coverage or a change in coverage under a Federal benefits program 
requiring periodic deductions from pay, if the amount to be recovered 
was accumulated over 4 pay periods or less.
    (4) Any routine intra-agency adjustment of pay that is made to 
correct an overpayment of pay attributable to clerical or administrative 
errors or delays in processing pay documents, if the overpayment 
occurred within the 4 pay periods preceding the adjustment and, at the 
time of such adjustment, or as soon thereafter as practical, the 
individual is provided written notice of the nature and the amount of 
the adjustment and point of contact for contesting such adjustment.
    (5) Any adjustment to collect a debt amounting to $50 or less, if, 
at the time of such adjustment, or as soon thereafter as practical, the 
individual is provided written notice of the nature and the amount of 
the adjustment and a point of contact for contesting such adjustment.
    (d) These regulations do not preclude an employee from requesting 
waiver of the debt, if waiver is available under subpart D of this part 
or by other regulation or statute.
    (e) Nothing in these regulations precludes the compromise, 
suspension or termination of collection actions where appropriate under 
subpart D of this part or other regulations or statutes.



Sec. 34.12  Coordinating offset with another Federal agency.

    (a) When STATE is owed a debt by an employee of another agency, the 
other agency shall not initiate the requested offset until STATE 
provides the agency with a written certification that the debtor owes 
STATE a debt (including the amount and basis of the debt and the due 
date of payment) and that STATE has complied with these regulations.
    (b) When another agency is owed the debt, STATE may use salary 
offset against one of its employees who is indebted to another agency, 
if requested to do so by that agency. Such request must be accompanied 
by a certification that the person owes the debt (including the amount 
and basis of the debt and the due date of payment) and that the agency 
has complied with its regulations as required by 5 U.S.C. 5514 and 5 CFR 
part 550, subpart K.

[[Page 114]]



Sec. 34.13  Notice requirements before offset.

    Except as provided in Sec. 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:
    (a) That STATE has reviewed the records relating to the debt and has 
determined that the debt is owed, its origin and nature, and the amount 
due;
    (b) The intention of STATE to collect the debt by means of deduction 
from the employee's current pay until the debt and any and all 
accumulated interest, penalties and administrative costs are paid in 
full;
    (c) The amount, frequency, approximate beginning date, and duration 
of the intended deductions;
    (d) The requirement to assess and collect interest, penalties, and 
administrative costs in accordance with Sec. 34.6, unless waived in 
accordance with Sec. 34.6(f);
    (e) The employee's right to inspect and copy any STATE records 
relating to the debt, or, if the employee or their representative cannot 
personally inspect the records, to request and receive a copy of such 
records;
    (f) The opportunity to voluntarily repay the debt or to enter into a 
written agreement (under terms agreeable to STATE) to establish a 
schedule for repayment of the debt in lieu of offset;
    (g) Right to an internal review or outside hearing. (1) An internal 
review under Sec. 34.9 may be requested in cases of collections by 
salary offset for debts arising under 5 U.S.C. 5705 (travel advances), 5 
U.S.C. 4108 (training expenses), and other statutes specifically 
providing for collection by salary offset.
    (2) For all other debts, an internal review or an outside hearing 
conducted by an official not under the supervision or control of STATE 
may be requested with respect to the existence of the debt, the amount 
of the debt, or the repayment schedule (i.e., the percentage of 
disposable pay to be deducted each pay period);
    (h) That the timely filing of a request for an outside hearing or 
internal review within 30 calendar days after the date of the notice of 
intent to offset will stay the commencement of collection proceedings;
    (i) The method and time period for requesting an internal review or 
outside hearing;
    (j) That a final decision on the internal review or outside hearing 
(if one is requested) will be issued at the earliest practical date, but 
not later than 60 days after the filing of the request, unless the 
employee requests and the outside hearing official grants a delay in the 
proceedings;
    (k) That any knowingly false or frivolous statements, 
representation, or evidence may subject the employee to disciplinary 
procedures (5 U.S.C. Chapter 75, 5 CFR part 752 or other applicable 
statutes or regulations); penalties (31 U.S.C. 3729-3731 or other 
applicable statutes or regulations); or criminal penalties (18 U.S.C. 
286, 287, 1001, and 1002 or other applicable statutes or regulations);
    (l) Any other rights and remedies available to the employee under 
statutes or regulations governing the program for which the collection 
is being made;
    (m) That the amounts paid on the debt which are later waived or 
found not owed to the United States will be promptly refunded to the 
employee, unless there are applicable contractual or statutory 
provisions to the contrary; and
    (n) The name and address of the STATE official to whom 
communications should be directed.



Sec. 34.14  Request for an outside hearing for certain debts.

    (a) Except as provided in paragraph (d) of this section, an employee 
must file a request that is received by STATE not later than 30 calendar 
days from the date of STATE's notice described in Sec. 34.13 if an 
employee wants an outside hearing pursuant to Sec. 34.13(g)(2) 
concerning:
    (1) The existence or amount of the debt; or

[[Page 115]]

    (2) STATE's proposed offset schedule.
    (b) The request must be signed by the employee and should identify 
and explain with reasonable specificity and brevity the facts, evidence 
and witnesses which the employee believes support his or her position. 
If the employee objects to the percentage of disposable pay to be 
deducted from each check, the request should state the objection and the 
reasons for it.
    (c) The employee must also specify whether an oral or paper hearing 
is requested. If an oral hearing is desired, the request should explain 
why the matter cannot be resolved by review of the documentary evidence 
alone.
    (d) If the employee files a request for an outside hearing later 
than the required 30 calendar days as described in paragraph (a) of this 
section, STATE may accept the request if the employee can show that the 
delay was because of circumstances beyond his or her control or because 
of failure to receive notice of the filing deadline (unless the employee 
has actual notice of the filing deadline).
    (e) An employee waives the right to an outside hearing and will have 
his or her pay offset if the employee fails to file a petition for a 
hearing as prescribed in paragraph (a) of this section.



Sec. 34.15  Outside hearings.

    (a) If an employee timely files a request for an outside hearing 
under Sec. 34.13(g)(2), pursuant to 5 U.S.C. 5514(a)(2), STATE shall 
select the time, date, and location of the hearing.
    (b) Outside hearings shall be conducted by a hearing official not 
under the supervision or control of STATE.
    (c) Procedure. (1) After the employee requests a hearing, the 
hearing official shall notify the employee of the form of the hearing to 
be provided. If the hearing will be oral, notice shall set forth the 
date, time and location of the hearing. If the hearing will be paper, 
the employee shall be notified that he or she should submit arguments in 
writing to the hearing official by a specified date after which the 
record shall be closed. This date shall give the employee reasonable 
time to submit documentation.
    (2) Oral hearing. An employee who requests an oral hearing shall be 
provided an oral hearing if the hearing official determines that the 
matter cannot be resolved by review of documentary evidence alone (e.g., 
when an issue of credibility or veracity is involved). The hearing is 
not an adversarial adjudication, and need not take the form of an 
evidentiary hearing.
    (3) Paper hearing. If the hearing official determines that an oral 
hearing is not necessary, he or she will make a decision based upon a 
review of the available written record.
    (4) Record. The hearing official must maintain a summary record of 
any hearing provided by this subpart. Witnesses who provide testimony 
will do so under oath or affirmation.
    (5) Content of decision. The written decision shall include:
    (i) A statement of the facts presented to support the origin, 
nature, and amount of the debt;
    (ii) The hearing official's findings, analysis, and conclusions; and
    (iii) The terms of any repayment schedules, or the date salary 
offset will commence, if applicable.
    (6) Failure to appear. In the absence of good cause shown (e.g., 
excused illness), an employee who fails to appear at a hearing shall be 
deemed, for the purpose of this subpart, to admit the existence and 
amount of the debt as described in the notice of intent. The hearing 
official shall schedule a new hearing date upon the request of the 
creditor agency representative when good cause is shown.
    (d) A hearing official's decision is considered to be an official 
certification regarding the existence and amount of the debt for 
purposes of executing salary offset under 5 U.S.C. 5514 only. It does 
not supersede the finding by STATE that a debt is owed and does not 
affect the Government's ability to recoup the indebtedness through 
alternative collection methods under Sec. 34.10.



Sec. 34.16  Procedures for salary offset.

    Unless otherwise provided by statute or contract, the following 
procedures apply to salary offset:
    (a) Method. Salary offset will be made by deduction at one or more 
officially established pay intervals from the current pay account of the 
employee without his or her consent.

[[Page 116]]

    (b) Source. The source of salary offset is current disposable pay.
    (c) Types of collection. (1) Lump sum payment. Ordinarily debts will 
be collected by salary offset in one lump sum if possible. However, if 
the amount of the debt exceeds 15 percent of disposable pay for an 
officially established pay interval, the collection by salary offset 
must be made in installment deductions.
    (2) Installment deductions. (i) The size of installment deductions 
must bear a reasonable relation to the size of the debt and the 
employee's ability to pay. If possible, the size of the deduction will 
be that necessary to liquidate the debt in no more than 1 year. However, 
the amount deducted for any period must not exceed 15 percent of the 
disposable pay from which the deduction is made, except as provided by 
other regulations or unless the employee has agreed in writing to a 
greater amount.
    (ii) Installment payments of less than $25 per pay period will be 
accepted only in the most unusual circumstances.
    (iii) Installment deductions will be made over a period of not 
greater than the anticipated period of employment.



Sec. 34.17  Non-waiver of rights by payments.

    So long as there are no statutory or contractual provisions to the 
contrary, no employee payment (of all or a portion of a debt) collected 
under this subpart will be interpreted as a waiver of any rights that 
the employee may have under 5 U.S.C. 5514.



                    Subpart D_Collection Adjustments



Sec. 34.18  Waivers of indebtedness.

    (a) Waivers of indebtedness may be granted only as provided for 
certain types of debt by specific statutes and according to the 
standards set out under those statutes.
    (b) Authorities--(1) Debts arising out of erroneous payments of pay 
and allowances. 5 U.S.C. 5584 provides authority for waiving in whole or 
in part debts arising out of erroneous payments of pay and allowances, 
and travel, transportation and relocation expenses and allowances, if 
collection would be against equity and good conscience and not in the 
best interests of the United States.
    (i) Waiver may not be granted if there exists in connection with the 
claim an indication of fraud, misrepresentation, fault, or lack of good 
faith on the part of the employee or any other person having an interest 
in obtaining a waiver.
    (ii) Fault is considered to exist if in light of the circumstances 
the employee knew or should have known through the exercise of due 
diligence that an error existed but failed to take corrective action. 
What an employee should have known is evaluated under a reasonable 
person standard. Employees are, however, expected to have a general 
understanding of the Federal pay system applicable to them.
    (iii) An employee with notice that a payment may be erroneous is 
expected to make provisions for eventual repayment. Financial hardship 
is not a basis for granting a waiver for an employee who was on notice 
of an erroneous payment.
    (iv) If the deciding official finds no indication of fraud, 
misrepresentation, fault, or lack of good faith on the part of the 
employee or any other person having an interest in obtaining a waiver of 
the claim, the employee is not automatically entitled to a waiver. 
Before a waiver can be granted, the deciding official must also 
determine that collection of the claim against an employee would be 
against equity and good conscience and not in the best interests of the 
United States. Factors to consider when determining if collection of a 
claim against an employee would be against equity and good conscience 
and not in the best interests of the United States include, but are not 
limited to:
    (A) Whether collection of the claim would cause serious financial 
hardship to the employee from whom collection is sought.
    (B) Whether, because of the erroneous payment, the employee either 
has relinquished a valuable right or changed positions for the worse, 
regardless of the employee's financial circumstances.

[[Page 117]]

    (C) The time elapsed between the erroneous payment and discovery of 
the error and notification of the employee;
    (D) Whether failure to make restitution would result in unfair gain 
to the employee;
    (E) Whether recovery of the claim would be unconscionable under the 
circumstances.
    (2) Debts arising out of advances in pay. 5 U.S.C. 5524a provides 
authority for waiving in whole or in part a debt arising out of an 
advance in pay if it is shown that recovery would be against equity and 
good conscience or against the public interest.
    (i) Factors to be considered when determining if recovery of an 
advance payment would be against equity and good conscience or against 
the public interest include, but are not limited to:
    (A) Death of the employee;
    (B) Retirement of the employee for disability;
    (C) Inability of the employee to return to duty because of 
disability (supported by an acceptable medical certificate); and
    (D) Whether failure to repay would result in unfair gain to the 
employee.
    (ii) [Reserved]
    (3) Debts arising out of advances in situations of authorized or 
ordered departures. 5 U.S.C. 5522 provides authority for waiving in 
whole or in part a debt arising out of an advance payment of pay, 
allowances, and differentials provided under this section if it is shown 
that recovery would be against equity and good conscience or against the 
public interest.
    (i) Factors to be considered when determining if recovery of an 
advance payment would be against equity and good conscience or against 
the public interest include, but are not limited to:
    (A) Death of the employee;
    (B) Retirement of the employee for disability;
    (C) Inability of the employee to return to duty because of 
disability (supported by an acceptable medical certificate); and
    (D) Whether failure to repay would result in unfair gain to the 
employee.
    (ii) [Reserved]
    (4) Debts arising out of advances of allowances and differentials 
for employees stationed abroad. 5 U.S.C. 5922 provides authority for 
waiving in whole or in part a debt arising out of an advance of 
allowances and differentials provided under this subchapter if it is 
shown that recovery would be against equity and good conscience or 
against the public interest.
    (i) Factors to be considered when determining if recovery of an 
advance payment would be against equity and good conscience or against 
the public interest include, but are not limited to:
    (A) Death of the employee;
    (B) Retirement of the employee for disability;
    (C) Inability of the employee to return to duty because of 
disability (supported by an acceptable medical certificate); and
    (D) Whether failure to repay would result in unfair gain to the 
employee.
    (ii) [Reserved]
    (5) Debts arising out of employee training expenses. 5 U.S.C. 4108 
provides authority for waiving in whole or in part a debt arising out of 
employee training expenses if it is shown that recovery would be against 
equity and good conscience or against the public interest.
    (i) Factors to be considered when determining if recovery of a debt 
arising out of employee training expenses would be against equity and 
good conscience or against the public interest include, but are not 
limited to:
    (A) Death of the employee;
    (B) Retirement of the employee for disability;
    (C) Inability of the employee to return to duty because of 
disability (supported by an acceptable medical certificate); and
    (D) Whether failure to repay would result in unfair gain to the 
employee.
    (ii) [Reserved]
    (6) Under-withholding of life insurance premiums. 5 U.S.C. 8707(d) 
provides authority for waiving the collection of unpaid deductions 
resulting from under-withholding of Federal Employees' Group Life 
Insurance Program premiums if the individual is without fault and 
recovery would be against equity and good conscience.
    (i) Fault is considered to exist if in light of the circumstances 
the employee knew or should have known through the exercise of due 
diligence

[[Page 118]]

that an error existed but failed to take corrective action.
    (ii) Factors to be considered when determining whether recovery of 
unpaid deduction resulting from under-withholding would be against 
equity and good conscience include, but are not limited to:
    (A) Whether collection of the claim would cause serious financial 
hardship to the individual from whom collection is sought.
    (B) The time elapsed between the failure to properly withhold and 
discovery of the failure and notification of the individual;
    (C) Whether failure to make restitution would result in unfair gain 
to the individual;
    (D) Whether recovery of the claim would be unconscionable under the 
circumstances.
    (7) Overpayments of Foreign Service annuities. For waiver of debts 
arising from overpayments from the Foreign Service Retirement and 
Disability Fund under the Foreign Service Retirement and Disability 
System or the Foreign Service Pension System see 22 CFR part 17.
    (8) As otherwise provided by law.
    (c) Waiver of indebtedness is an equitable remedy and as such must 
be based on an assessment of the facts involved in the individual case 
under consideration.
    (d) The burden is on the employee to demonstrate that the applicable 
waiver standard has been met.
    (e) Requests. A debtor requesting a waiver shall do so in writing to 
the contact office by the payment due date stated within the initial 
notice sent under Sec. 34.8(b) or other applicable provision. The 
debtor's written response shall state the basis for the dispute and 
include any relevant documentation in support.
    (f) While a waiver request is pending, STATE may suspend collection, 
including the accrual of interest and penalties, on the debt if STATE 
determines that suspension is in the Department's best interest or would 
serve equity and good conscience.



Sec. 34.19  Compromise.

    STATE may attempt to effect compromise in accordance with the 
standards set forth in the FCCS, 31 CFR part 902.



Sec. 34.20  Suspension.

    The suspension of collection action shall be made in accordance with 
the standards set forth in the FCCS, 31 CFR 903.1-903.2



Sec. 34.21  Termination.

    The termination of collection action shall be made in accordance 
with the standards set forth in the FCCS, 31 CFR 903.1 and 903.3-903.4.



Sec. 34.22  Discharge.

    Once a debt has been closed out for accounting purposes and 
collection has been terminated, the debt is discharged. STATE must 
report discharged debt as income to the debtor to the Internal Revenue 
Service per 26 U.S.C. 6050P and 26 CFR 1.6050P-1.



Sec. 34.23  Bankruptcy.

    A debtor should notify STATE at the contact office provided in the 
original notice of the debt, if the debtor has filed for bankruptcy. 
STATE will require documentation from the applicable court indicating 
the date of filing and type of bankruptcy. Pursuant to the laws of 
bankruptcy, STATE will suspend debt collection upon such filing unless 
the automatic stay is no longer in effect or has been lifted. In 
general, collection of a debt discharged in bankruptcy shall be 
terminated unless otherwise provided for by bankruptcy law.



Sec. 34.24  Refunds.

    (a) STATE will refund promptly to the appropriate individual amounts 
offset under this regulation when:
    (1) A debt is waived or otherwise found not owing the United States 
(unless expressly prohibited by statute or regulation); or
    (2) STATE is directed by an administrative or judicial order to make 
a refund.
    (b) Refunds do not bear interest unless required or permitted by law 
or contract.

[[Page 119]]



PART 35_PROGRAM FRAUD CIVIL REMEDIES--Table of Contents




Sec.
35.1 General.
35.2 Definitions.
35.3 Basis for civil penalties and assessments.
35.4 Investigation.
35.5 Review by the reviewing official.
35.6 Prerequisites for issuing a complaint.
35.7 Complaint.
35.8 Service of complaint.
35.9 Answer.
35.10 Default upon failure to file an answer.
35.11 Referral of complaint and answer to the ALJ.
35.12 Notice of hearing.
35.13 Parties to the hearing.
35.14 Separation of functions.
35.15 Ex parte contacts.
35.16 Disqualification of reviewing official or ALJ.
35.17 Rights of parties.
35.18 Authority of the ALJ.
35.19 Prehearing conferences.
35.20 Disclosure of documents.
35.21 Discovery.
35.22 Exchange of witness lists, statements and exhibits.
35.23 Subpoenas for attendance at hearing.
35.24 Protective order.
35.25 Fees.
35.26 Form, filing and service of papers.
35.27 Computation of time.
35.28 Motions.
35.29 Sanctions.
35.30 The hearing and burden of proof.
35.31 Determining the amount of penalties and assessments.
35.32 Location of hearing.
35.33 Witnesses.
35.34 Evidence.
35.35 The record.
35.36 Post-hearing briefs.
35.37 Initial decision.
35.38 Reconsideration of initial decision.
35.39 Appeal to authority head.
35.40 Stays ordered by the Department of Justice.
35.41 Stay pending appeal.
35.42 Judicial review.
35.43 Collection of civil penalties and assessments.
35.44 Right to administrative offset.
35.45 Deposit in Treasury of United States.
35.46 Compromise or settlement.
35.47 Limitations.

    Authority: 31 U.S.C. 3801-3812.

    Source: 55 FR 23424, June 8, 1990, unless otherwise noted.



Sec. 35.1  General.

    (a) Basis. This part implements the Program Fraud Civil Remedies Act 
of 1986, Public Law 99-509, sections. 6101-6104, 100 Stat. 1874 (October 
21, 1986), codified at 31 U.S.C. 3801-3812. 31 U.S.C. 3809 of the 
statute requires each authority head to promulgate regulations necessary 
to implement the provisions of the statute.
    (b) Purpose. This part establishes administrative procedures for 
imposing civil penalties and assessments against persons who make, 
submit, or present, or cause to be made, submitted, or presented, false 
fictitious, or fraudulent claims or written statements to authorities or 
to their agents; and specifies the hearing and appeal rights of persons 
subject to allegations of liability for such penalties and assessments.
    (c) Special considerations abroad. Where a party, witness or 
material evidence in a proceeding under these regulations is located 
abroad, the investigating official, reviewing official or ALJ, as the 
case may be, may adjust the provisions below for service, filing of 
documents, time limitations, and related matters to meet special 
problems arising out of that location.



Sec. 35.2  Definitions.

    (a) ALJ means an Administrative Law Judge in the authority appointed 
pursuant to 5 U.S.C. 3105 or detailed to the authority pursuant to 5 
U.S.C. 3344.
    (b) Authority means the United States Department of State.
    (c) Authority head means the Under Secretary for Management.
    (d) Benefit means, in the context of ``statement,'' anything of 
value, including but not limited to, any advantage, preference, 
privilege, license, permit, favorable decision, ruling, status, or loan 
gurarantee.
    (e) Claim means any request, demand, or submission--
    (1) Made to the authority for property, services, or money 
(including money representing grants, loans, insurance, or benefits);
    (2) Made to a recipient of property, services, or money from the 
authority or to a party to a contract with the authority--
    (i) For property or services if the United States--
    (A) Provided such property or services;

[[Page 120]]

    (B) Provided any portion of the funds for the purchase of such 
property or services; or
    (C) Will reimburse such recipient or party for the purchase of such 
property or services; or
    (ii) For the payment of money (including money representing grants, 
loans, insurance or benefits) if the United States--
    (A) Provided any portion of the money requested or demanded; or
    (B) Will reimburse such recipient or party for any portion of the 
money paid on such request or demand; or
    (3) Made to the authority which has the effect of decreasing an 
obligation to pay or account for property, services or money.
    (f) Complaint means the administrative complaint served by the 
reviewing official on the defendant under Sec. 35.7.
    (g) Defendant means any person alleged in a complaint under Sec. 
35.7 to be liable for a civil penalty or assessment under Sec. 35.3.
    (h) Department means the Department of State.
    (i) Government means the United States Government.
    (j) Individual means a natural person.
    (k) Initial decision means the written decision of the ALJ required 
by Sec. 35.10 or Sec. 35.37, and includes a revised initial decision 
issued following a remand or a motion for reconsideration.
    (l) Investigating official means the Inspector General of the 
Department of State or an officer or employee of the Office of Inspector 
General designated by the Inspector General and serving in a position 
for which the rate of basic pay is not less than the minimum rate of 
basic pay for grade GS-16 under the General Schedule.
    (m) Knows or has reason to know means that a person, with respect to 
a claim or statement--
    (1) Has actual knowledge that the claim or statement is false, 
fictitious, or fraudulent;
    (2) Acts in deliberate ignorance of the truth or falsity of the 
claim or statement; or
    (3) Acts in reckless disregard of the truth or falsity of the claim 
or statement.
    (n) Makes, wherever it appears, shall include the terms presents, 
submits, and causes to be made, presented, or submitted. As the context 
requires, making or made, shall likewise include the corresponding forms 
of such terms.
    (o) Person means any individual, partnership, corporation, 
association or private organization, and includes the plural of the 
term.
    (p) Representative means an attorney who is a member in good 
standing of the bar of any state, territory, or possession of the United 
States, or of the District of Columbia, or the Commonwealth of Puerto 
Rico.
    (q) Representative for the Authority means the Counsel to the 
Inspector General.
    (r) Reviewing official means the chief Financial Officer of the 
Department or her or his designee who is--
    (1) Not subject to supervision by, or required to report to, the 
investigating official;
    (2) Not employed in the organizational unit of the authority in 
which the investigating official is employed; and
    (3) Serving in a position for which the rate of basic pay is not 
less than the minimum rate of basic pay for grade GS-16 under the 
General Schedule.
    (s) Statement means any representation, certification, affirmation, 
document, record, or accounting or bookkeeping entry made--
    (1) With respect to a claim or to obtain the approval or payment of 
a claim (including relating to eligibility to make a claim); or
    (2) With respect to (including relating to eligibility for)--
    (i) A contract with, or a bid or proposal for a contract with; or
    (ii) A grant, loan or benefit from, the authority, or any state, 
political subdivision of a state, or other party, if the United States 
Government provides any portion of the money or property under such 
contract or for such grant, loan, or benefit, or if the Government will 
reimburse such state, political subdivision, or party for any portion of 
the money or property under such contract or for such grant, loan, or 
benefit.

[[Page 121]]



Sec. 35.3  Basis for civil penalties and assessments.

    (a) Claims. (1) Except as provided in paragraph (c) of this section, 
any person who makes a claim that the person knows or has reason to know 
the following shall be subject, in addition to any other remedy that may 
be prescribed by law, to a civil penalty of not more than $5,000 for 
each such claim:
    (i) Is false, fictitious, or fraudulent;
    (ii) Includes or is supported by any written statement which asserts 
a material fact which is false, fictitious, or fraudulent;
    (iii) Includes or is supported by any written statement that--
    (A) Omits a material fact;
    (B) Is false, fictitious, or fraudulent as a result of such 
omission; and
    (C) Is a statement in which the person making the statement has a 
duty to include such material fact; or
    (iv) Is for payment for the provision of property or services which 
the person has not provided as claimed.
    (2) Each voucher, invoice, claim form, or other individual request 
or demand for property, services, or money constitutes a separate claim.
    (3) A claim shall be considered made to the authority, recipient, or 
party when such claim is actually made to an agent, fiscal intermediary, 
or other entity, including any state or political subdivision thereof, 
acting for or on behalf of the authority, recipient, or party.
    (4) Each claim for property, services, or money is subject to a 
civil penalty regardless of whether such property, services, or money is 
actually delivered or paid.
    (5) If the Government has made any payment (including transferred 
property or provided services) on a claim, a person subject to a civil 
penalty under paragraph (a)(1) of this section shall also be subject to 
an assessment of not more than twice the amount of such claim or that 
portion thereof that is determined to be in violation of paragraph 
(a)(1) of this section. Such assessment shall be in lieu of damages 
sustained by the Government because of such claim.
    (b) Statements. (1) Except as provided in paragraph (c) of this 
section, any person who makes a written statement that--
    (i) The person knows or has reason to know--
    (A) Asserts a material fact which is false, fictitious, or 
fraudulent; or
    (B) Is false, fictitious, or fraudulent because it omits a mateial 
fact that the person making the statment has a duty to include in such 
statement; and
    (ii) Contains or is accompanied by an express certification or 
affirmation of the truthfulness and accuracy of the contents of the 
statement, shall be subject, in addition to any other remedy that may be 
prescribed by law, to a civil penalty of not more than $5,000 for each 
such statement.
    (2) Each written representation, certification, or affirmation 
constitutes a separate statement.
    (3) A statement shall be considered made to the authority when such 
statement is actually made to an agent, fiscal intermediary, or other 
entity, including any state or political subdivision thereof, acting for 
or on behalf of the authority.
    (c) No proof of specific intent to defraud is required to establish 
liability under this section.
    (d) In any case in which it is determined that more than one person 
is liable for making a claim or statement under this section, each such 
person may be held liable for a civil penalty under this section.
    (e) In any case in which it is determined that more than one person 
is liable for making a claim under this section on which the Government 
has made payment (including transferred property or provided services), 
an assessment may be imposed against any such person or jointly and 
severally against any combination of such persons.



Sec. 35.4  Investigation.

    (a) If an investigating official concludes that a subpoena pursuant 
to the authority conferred by 31 U.S.C. 3804(a) is warranted--
    (1) The subpoena so issued shall notify the person to whom it is 
addressed of the authority under which the subpoena is issued (and, in 
the case of a subpoena to be served outside the jurisdiction of the 
United States, the basis

[[Page 122]]

for such service), and shall identify the records or documents sought;
    (2) The investigating official may designate a person to act on his 
or her behalf to receive the documents sought; and
    (3) The person receiving such subpoena shall be required to tender 
to the investigating official or the person designated to receive the 
documents a certification that the documents sought have been produced, 
or that such documents are not available and the reasons therefore, or 
that such documents, suitably identified, have been withheld based upon 
the assertion of an identified privilege.
    (b) If the investigating official concludes that an action under the 
Program Fraud Civil Remedies Act may be warranted, the investigating 
official shall submit a report containing the findings and conclusions 
of such investigation to the reviewing official.
    (c) Nothing in this section shall preclude or limit an investigating 
official's discretion to refer allegations directly to the Department of 
Justice for suit under the False Claims Act or other civil relief, or to 
preclude or limit such official's discretion to defer or postpone a 
report or referral to the reviewing official to avoid interference with 
a criminal investigation or prosecution.
    (d) Nothing in this section modifies any responsibility of an 
investigating official to report violations of criminal law to the 
Attorney General.



Sec. 35.5  Review by the reviewing official.

    (a) If, based on the report of the investigating official under 
Sec. 35.4(b), the reviewing official determines that there is adequate 
evidence to believe that a person is liable under Sec. 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 Sec. 35.7.
    (b) Such notice shall include--
    (1) A statement of the reviewing official's reasons for issuing a 
complaint;
    (2) A statement specifying the evidence that supports the 
allegations of liability;
    (3) A description of the claims or statements upon which the 
allegations of liability are based;
    (4) An estimate of the amount of money or the value of property, 
services, or other benefits requested or demanded in violation of Sec. 
35.3;
    (5) A statement of any exculpatory or mitigating circumstances that 
may relate to the claims or statements known by the reviewing official 
or the investigating official; and
    (6) A statement that there is a reasonable prospect of collecting an 
appropriate amount of penalties and assessments.



Sec. 35.6  Prerequisites for issuing a complaint.

    (a) The reviewing official may issue a complaint under Sec. 35.7 
only if--
    (1) The Department of Justice approves the issuance of a complaint 
in a written statement described in 31 U.S.C. 3803(b)(1); and
    (2) In the case of allegations of liability under Sec. 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 Sec. 35.3(a) does not exceed $150,000.
    (b) For purposes of this section, a related group of claims 
submitted at the same time shall include only those claims arising from 
the same transaction (e.g., grant, loan, application, or contract) that 
are submitted simultaneously as part of a single request, demand or 
submission.
    (c) Nothing in this section shall be construed to limit the 
reviewing official's authority to join in a single complaint against a 
person's claims that are unrelated or were not submitted simultaneously, 
regardless of the amount of money, or the value of property or services, 
demanded or requested.



Sec. 35.7  Complaint.

    (a) On or after the date the Department of Justice approves the 
issuance of a complaint in accordance with 31 U.S.C. 3803(b)(1), the 
reviewing official

[[Page 123]]

may serve a complaint on the defendant, as provided in Sec. 35.8.
    (b) The complaint shall state--
    (1) The allegations of liability against the defendant, including 
the statutory basis for liability, an identification of the claims or 
statements that are the basis for the alleged liability, and the reasons 
why liability allegedly arises from such claims or statements;
    (2) The maximum amount of penalties and assessments for which the 
defendant may be held liable;
    (3) Instructions for filing an answer to request a hearing, 
including a specific statement of the defendant's right to request a 
hearing by filing an answer and to be represented by a representative; 
and
    (4) That failure to file an answer within 30 days of service of the 
complaint will result in the imposition of the maximum amount of 
penalties and assessments without right to appeal, as provided in Sec. 
35.10.
    (c) At the same time the reviewing official serves the complaint, he 
or she shall serve the defendant with a copy of these regulations.



Sec. 35.8  Service of complaint.

    (a) Service of a complaint must be made by certified or registered 
mail or by delivery in any manner authorized by Rule 4(d) of the Federal 
Rules of Civil Procedure. Service is complete upon receipt.
    (b) Proof of service, stating the name and address of the person on 
whom the complaint was served, and the manner and date of service, may 
be made by--
    (1) Affidavit of the individual serving the complaint by delivery;
    (2) A United States Postal Service return receipt card acknowledging 
receipt;
    (3) Written acknowledgment of receipt by the defendant or his or her 
representative; or
    (4) In case of service abroad authenticated in accordance with the 
Convention on the Service Abroad of Judicial and Extra Judicial 
Documents in Civil or Commercial Matters.



Sec. 35.9  Answer.

    (a) The defendant may request a hearing by filing an answer with the 
reviewing official within 30 days of service of the complaint. An answer 
shall be deemed to be a request for hearing.
    (b) In the answer, the defendant--
    (1) Shall admit or deny each of the allegations of liability made in 
the complaint;
    (2) Shall state any defense on which the defendant intends to rely;
    (3) May state any reasons why the defendant contends that the 
penalties and assessments should be less than the statutory maximum; and
    (4) Shall state the name, address and telephone number of the person 
authorized by the defendant to act as defendant's representative, if 
any.
    (c) If the defendant is unable to file an answer meeting the 
requirements of paragraph (b) of this section within the time provided, 
the defendant may, before the expiration of 30 days from service of the 
complaint, file with the reviewing official a general answer denying 
liability and requesting a hearing, and a request for an extension of 
time within which to file an answer meeting the requirements of 
paragraph (b) of this section. The reviewing official shall file 
promptly with the ALJ the complaint, the general answer denying 
liability, and the request for an extension of time as provided in Sec. 
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.



Sec. 35.10  Default upon failure to file an answer.

    (a) If the defendant does not file an answer within the time 
prescribed in Sec. 35.9(a), the reviewing official may refer the 
complaint to the ALJ.
    (b) Upon the referral of the complaint, the ALJ shall promptly serve 
on defendant in the manner prescribed in Sec. 35.8, a notice that an 
initial decision will be issued under this section.
    (c) If the defendant fails to answer, the ALJ shall assume the facts 
alleged in the complaint to be true, and, if such facts established 
liability under Sec. 35.3, the ALJ shall issue an initial decision 
imposing the maximum amount of penalties and assessments allowed under 
the statute.

[[Page 124]]

    (d) Except as otherwise provided in this section, by failing to file 
a timely answer, the defendant waives any right to further review of the 
penalties and assessments imposed under paragraph (c) of this section, 
and the initial decision shall become final and binding upon the parties 
30 days after it was issued.
    (e) If, before such an initial decision becomes final, the defendant 
files a motion with the ALJ seeking to reopen on the grounds that 
extraordinary circumstances prevented the defendant from filing an 
answer, the initial decision shall be stayed pending the ALJ's decision 
on the motion.
    (f) If, on such motion, the defendant can demonstrate extraordinary 
circumstances excusing the failure to file a timely answer, the ALJ 
shall withdraw the initial decision in paragraph (c) of this section, if 
such a decision has been issued, and shall grant the defendant an 
opportunity to answer the complaint.
    (g) A decision of the ALJ denying a defendant's motion under 
paragraph (e) of this section is not subject to reconsideration under 
Sec. 35.38.
    (h) The defendant may appeal to the authority head the decision 
denying a motion to reopen by filing a notice of appeal with the 
authority head within 15 days after the ALJ denies the motion. The 
timely filing of a notice of appeal shall stay the initial decision 
until the authority head decides the issue.
    (i) If the defendant files a timely notice of appeal with the 
authority head, the ALJ shall forward the record of the proceeding to 
the authority head.
    (j) The authority head shall decide expeditiously whether 
extraordinary circumstances excuse the defendant's failure to file a 
timely answer based solely on the record before the ALJ.
    (k) If the authority head decides that extraordinary circumstances 
excused the defendant's failure to file a timely answer, the authority 
head shall remand the case to the ALJ with instructions to grant the 
defendant an opportunity to answer.
    (l) If the authority head decides that the defendant's failure to 
file a timely answer is not excused, the authority head shall reinstate 
the initial decision of the ALJ, which shall become final and binding 
upon the parties 30 days after the authority head issues such decision.



Sec. 35.11  Referral of complaint and answer to the ALJ.

    Upon receipt of an answer, the reviewing official shall file the 
complaint and answer with the ALJ.



Sec. 35.12  Notice of hearing.

    (a) When the ALJ receives the complaint and answer, the ALJ shall 
promptly serve a notice of hearing upon the defendant in the manner 
prescribed by Sec. 35.8. At the same time, the ALJ shall send a copy of 
such notice to the representative for the Authority.
    (b) Such notice shall include--
    (1) The tentative time and place, and the nature of the hearing;
    (2) The legal authority and jurisdiction under which the hearing is 
to be held;
    (3) The matters of fact and law to be asserted;
    (4) A description of the procedures for the conduct of the hearing;
    (5) The name, address, and telephone number of the representative of 
the Government and of the defendant, if any; and
    (6) Such other matters as the ALJ deems appropriate.



Sec. 35.13  Parties to the hearing.

    (a) The parties to the hearing shall be the defendant and the 
Authority.
    (b) Pursuant to 31 U.S.C. 3730(c)(5), a private plaintiff under the 
False Claims Act may participate in these proceedings to the extent 
authorized by the provisions of that Act.



Sec. 35.14  Separation of functions.

    (a) The investigating official, the reviewing official, and any 
employee or agent of the authority who takes part in investigating, 
preparing, or presenting a particular case may not, in such case or a 
factually related case--
    (1) Participate in the hearing as the ALJ;
    (2) Participate or advise in the initial decision or the review of 
the initial decision by the authority head, except as a witness or a 
representative in public proceedings; or

[[Page 125]]

    (3) Make the collection of penalties and assessments under 31 U.S.C. 
3806.
    (b) The ALJ shall not be responsible to, or subject to the 
supervision or direction of the investigating official or the reviewing 
official.
    (c) Except as provided in paragraph (a) of this section, the 
representative for the Government may be employed anywhere in the 
authority, including in the offices of either the investigating official 
or the reviewing official.



Sec. 35.15  Ex parte contacts.

    No party or person (except employees of the ALJ's office) shall 
communicate in any way with the ALJ on any matter at issue in a case, 
unless on notice and opportunity for all parties to participate. This 
provision does not prohibit a person or party from inquiring about the 
status of a case or asking routine questions concerning administrative 
functions or procedures.



Sec. 35.16  Disqualification of reviewing official or ALJ.

    (a) A reviewing official or ALJ in a particular case may disqualify 
herself or himself at any time.
    (b) A party may file with the ALJ a motion for disqualification of a 
reviewing official or an ALJ. Such motion shall be accompanied by an 
affidavit alleging personal bias or other reason for disqualification.
    (c) Such motion and affidavit shall be filed promptly upon the 
party's discovery of reasons requiring disqualification, or such objects 
shall be deemed waived
    (d) Such affidavit shall state specific facts that support the 
party's belief that personal bias or other reason for disqualification 
exists and the time and circumstances of the party's discovery of such 
facts. It shall be accompanied by a certificate of the representative of 
record that it is made in good faith.
    (e) Upon the filing of such a motion and affidavit, the ALJ shall 
proceed no further in the case until he or she resolves the matter of 
disqualification in accordance with paragraph (f) of this section.
    (f) If the ALJ--
    (1) Determines that a reviewing official is disqualified, the ALJ 
shall dismiss the complaint without prejudice;
    (2) Disqualifies himself or herself, the case shall be reassigned 
promptly to another ALJ; or
    (3) Denies a motion to disqualify, the authority head may determine 
the mater only as part of his or her review of the initial decision upon 
appeal, if any.



Sec. 35.17  Rights of parties.

    Except as otherwise limited by this part, all parties may--
    (a) Be accompanied, represented, and advised by a representative;
    (b) Participate in any conference held by the ALJ;
    (c) Conduct discovery;
    (d) Agree to stipulations of fact or law, which shall be made part 
of the record;
    (e) Present evidence relevant to the issues at the hearing;
    (f) Present and cross-examine witnesses;
    (g) Present oreal arguments at the hearing as permitted by the ALJ; 
and
    (h) Submit written briefs and proposed findings of fact and 
conclusions of law after the hearing.



Sec. 35.18  Authority of the ALJ.

    (a) The ALJ shall conduct a fair and impartial hearing, avoid delay, 
maintain order, and assure that a record of the proceeding is made.
    (b) The ALJ has the authority to--
    (1) Set and change the date, time, and place of the hearing upon 
reasonable notice to the parties;
    (2) Continue or recess the hearing in whole or in part for a 
reasonable period of time;
    (3) Hold conferences to identify or simplify the issues, or to 
consider other matters that may aid in the expeditious disposition of 
the proceeding;
    (4) Administer oaths and affirmations;
    (5) Issue subpoenas to be served within the United States requiring 
the attendance of witnesses and the production of documents at 
depositions or at hearings. Subpoenas to be served outside the 
jurisdiction of the United States shall state on their face the 
authority therefore;

[[Page 126]]

    (6) Rule on motions and other procedural matters;
    (7) Regulate the scope and timing of discovery;
    (8) Regulate the course of the hearing and the conduct of 
representatives and parties;
    (9) Examine witnesses;
    (10) Receive, rule on, exclude, or limit evidence;
    (11) Upon motion of a party, take official notice of facts;
    (12) Upon motion of a party, decide cases, in whole or in part, by 
summary judgment where there is no disputed issue of material fact;
    (13) Conduct any conference, argument, or hearing on motions in 
person or by telephone; and
    (14) Exercise such other authority as is necessary to carry out the 
responsibilities of the ALJ under this part.
    (c) The ALJ does not have the authority to find treaties and other 
international agreements or federal statutes or regulations invalid.



Sec. 35.19  Prehearing conferences.

    (a) The ALJ may schedule prehearing conferences as appropriate.
    (b) Upon the motion of any party, the ALJ shall schedule at least 
one prehearing conference at a reasonable time in advance of the 
hearing.
    (c) The ALJ may use prehearing conferences to discuss the following:
    (1) Simplification of the issues;
    (2) The necessity or desirability of amendments to the pleadings, 
including the need for a more definite statement;
    (3) Stipulations and admissions of fact or as to the contents and 
authenticity of documents;
    (4) Whether the parties can agree to submission of the case on a 
stipulated record;
    (5) Whether a party chooses to waive appearance at an oral hearing 
and to submit only documentary evidence (subject to the objection of 
other parties) and written argument;
    (6) Limitation of the number of witnesses;
    (7) Scheduling dates for the exchange of witness lists and of 
proposed exhibits;
    (8) Discovery;
    (9) The time and place for the hearing; and
    (10) Such other matters as may tend to expedite the fair and just 
disposition of the proceedings.
    (d) The ALJ may issue an order containing all matters agreed upon by 
the parties or ordered by the ALJ at a prehearing conference.



Sec. 35.20  Disclosure of documents.

    (a) Upon written request to the reviewing official, the defendant 
may review any relevant and material documents, transcripts, records, 
and other materials that relate to the allegations set out in the 
complaint and upon which the findings and conclusions of the 
investigating official under Sec. 35.4(b) are based, unless such 
materials are subject to a privilege under federal law or classified 
pursuant to Executive Order. Upon payment of fees for duplication, the 
defendant may obtain copies of such documents.
    (b) Upon written request to the reviewing official, the defendant 
also may obtain a copy of all exculpatory information in the possession 
of the reviewing official or investigating official relating to the 
allegations in the complaint, even if it is contained in a document that 
would otherwise be privileged. If the document would otherwise be 
privileged, only that portion containing exculpatory information must be 
disclosed.
    (c) The notice sent to the Attorney General from the reviewing 
official as described in Sec. 35.5 is not discoverable under any 
circumstances.
    (d) The defendant may file a motion to compel disclosure of the 
documents subject to the provisions of this section. Such a motion may 
only be filed with the ALJ following the filing of an answer pursuant to 
Sec. 35.9.



Sec. 35.21  Discovery.

    (a) The following types of discovery are authorized:
    (1) Requests for production of documents for inspection and copying;
    (2) Requests for admissions of the authenticity of any relevant 
document or of the truth of any relevant fact;
    (3) Written interrogatories; and
    (4) Depositions.

[[Page 127]]

    (b) For the purpose of this section and Sec. Sec. 35.22 and 35.23, 
the term ``documents'' includes information, documents, reports, 
answers, records, accounts, papers, and other data and documentary 
evidence. Nothing contained herein shall be interpreted to require the 
creation of a document.
    (c) Unless mutually agreed to by the parties, discovery is available 
only as ordered by the ALJ. The ALJ shall regulate the timing of 
discovery.
    (d) Motions for discovery. (1) A party seeking discovery may file a 
motion with the ALJ. Such a motion shall be accompanied by a copy of the 
requested discovery, or in the case of depositions, a summary of the 
scope of the proposed deposition.
    (2) Within ten days of service, a party may file an opposition to 
the motion and/or a motion for protective order as provided in Sec. 
35.24.
    (3) The ALJ may grant a motion for discovery only if he finds that 
the discovery sought--
    (i) Is necessary for the expeditious, fair, and reasonable 
consideration of the issues;
    (ii) Is not unduly costly or burdensome;
    (iii) Will not unduly delay the proceeding; and
    (iv) Does not seek privileged or classified information.
    (4) The burden of showing that discovery should be allowed is on the 
party seeking discovery.
    (5) The ALJ may grant discovery subject to a protective order under 
Sec. 35.24.
    (e) Depositions. (1) If a motion for deposition is granted, the ALJ 
shall issue a subpoena for the deponent, which may require the deponent 
to produce documents. The subpoena shall specify the time and place at 
which the deposition will be held.
    (2) The party seeking to depose shall serve the subpoena in the 
manner prescribed in Sec. 35.8.
    (3) The deponent may file with the ALJ a motion to quash the 
subpoena or a motion for a protective order within ten days of service.
    (4) The party seeking to depose shall provide for the taking of a 
verbatim transcript of the deposition, which it shall make available to 
all other parties for inspection and copying.
    (f) Each party shall bear its own costs of discovery.



Sec. 35.22  Exchange of witness lists, statements and exhibits.

    (a) At least 15 days before the hearing or at such other time as may 
be ordered by the ALJ, the parties shall exchange witness lists, copies 
of prior statements of proposed witnesses, and copies of proposed 
hearing exhibits, including copies of any written statements that the 
party intends to offer in lieu of live testimony in accordance with 
Sec. 35.33(b). At the time the above documents are exchanged, any party 
that intends to rely on the transcript of deposition testimony in lieu 
of live testimony at the hearing, if permitted by the ALJ, shall provide 
each party with a copy of the specific pages of the transcript it 
intends to introduce into evidence.
    (b) If a party objects, the ALJ shall not admit into evidence the 
testimony of any witness whose name does not appear on the witness list 
or any exhibit not provided to the opposing party as provided above 
unless the ALJ finds good cause for the failure or that there is no 
prejudice to the objecting party.
    (c) Unless another party objects within the time set by the ALJ, 
documents exchanged in accordance with paragraph (a) of this section 
shall be deemed to be authentic for the purpose of admissibility at the 
hearing.



Sec. 35.23  Subpoenas for attendance at hearing.

    (a) A party wishing to procure the appearance and testimony of any 
individual at the hearing may request that the ALJ issue a subpoena.
    (b) A subpoena requiring the attendance and testimony of an 
individual may also require the individual to produce documents at the 
hearing.
    (c) A party seeking a subpoena shall file a written request therefor 
not less than 15 days before the day fixed for the hearing unless 
otherwise allowed by the ALJ for good cause shown. Such request shall 
specify any documents to be produced and shall designate the witnesses 
and describe the address and location thereof with sufficient 
particularity to permit such witnesses to be found.

[[Page 128]]

    (d) The subpoena shall specify the time and place at which the 
witness is to appear and any documents the witness is to produce.
    (e) The party seeking the subpoena shall serve it in the manner 
prescribed in Sec. 35.8. A subpoena on a party or upon an individual 
under the control of a party may be served within the United States by 
first class mail.
    (f) A party or the individual to whom the subpoena is directed may 
file with the ALJ a motion to quash the subpoena within ten days after 
service or on or before the time specified in the subpoena for 
compliance if it is less than ten days after service.



Sec. 35.24  Protective order.

    (a) A party or a prospective witness or deponent may file a motion 
for a protective order with respect to discovery sought by an opposing 
party or with respect to the hearing, seeking to limit the availability 
or disclosure of evidence.
    (b) In issuing a protective order, the ALJ may make any order which 
justice requires to protect a party or person from annoyance, 
embarrassment, oppression, or undue burden or expense, including one or 
more of the following:
    (1) That the discovery not be had;
    (2) That the discovery may be had only on specified terms and 
conditions, including a designation of the time or place;
    (3) That the discovery may be had only through a method of discovery 
other than that requested;
    (4) That certain matters not be inquired into, or that the scope of 
discovery be limited to certain matters;
    (5) That discovery be conducted with no one present except persons 
designated by the ALJ;
    (6) That the contents of discovery or evidence be sealed;
    (7) That a deposition after being sealed be opened only by order of 
the ALJ;
    (8) That a trade secret or other confidential research, development, 
commercial information, classified material, or facts pertaining to any 
criminal investigation, proceeding, or other administrative 
investigation not be disclosed or be disclosed only in a designated way; 
or
    (9) That the parties simultaneously file specified documents or 
information enclosed in sealed envelopes to be opened as directed by the 
ALJ.



Sec. 35.25  Fees.

    The party requesting a subpoena shall pay the cost of the fees and 
mileage of any witness subpoenaed in the amounts that would be payable 
to a witness in a proceeding in United States District Court. A check 
for witness fees and mileage shall accompany the subpoena when served, 
except that when a subpoena is issued on behalf of the authority, a 
check for witness fees and mileage need not accompany the subpoena.



Sec. 35.26  Form, filing and service of papers.

    (a) Form. (1) Documents filed with the ALJ shall include an original 
and two copies.
    (2) Every pleading and paper filed in the proceeding shall contain a 
caption setting forth the title of the action, the case number assigned 
by the ALJ, a designation of the paper (e.g., motion to quash subpoena), 
and shall be in English or accompanied by an English translation.
    (3) Every pleading and paper shall be signed by, and shall contain 
the address and telephone number of the party or the person on whose 
behalf the paper was filed, or his or her representative.
    (4) Papers are considered filed when they are mailed. Date of 
mailing may be established by a certificate from the party or its 
representative or by proof that the document was sent by certified or 
registered mail.
    (b) Service. A party filing a document with the ALJ shall, at the 
time of filing, serve a copy of such document on every other party. 
Service upon any party of any document other than the complaint or 
notice of hearing, shall be made by delivering or mailing a copy to the 
party's last known address. When a party is represented by a 
representative, service shall be made upon such representative in lieu 
of the actual party.
    (c) Proof of service. A certificate of the individual serving the 
document by personal delivery or by mail, setting

[[Page 129]]

forth the manner of service, shall be proof of service.



Sec. 35.27  Computation of time.

    (a) In computing any period of time under this part or in an order 
issued thereunder, the time begins with the day following the act, 
event, or default, and includes the last day of the period, unless it is 
a Saturday, Sunday, or legal holiday observed by the Federal Government, 
in which event it includes the next business day.
    (b) When the period of time allowed is less than seven days, 
intermediate Saturdays, Sundays, and legal holidays observed by the 
Federal Government shall be excluded from the computation.
    (c) Where a document has been served or issued by mail, or by 
airmail abroad, an additional five days will be added to the time 
permitted for any response.



Sec. 35.28  Motions.

    (a) Any application to the ALJ for an order or ruling shall be by 
motion. Motions shall state the relief sought, the authority relied 
upon, and the facts alleged, and shall be filed with the ALJ and served 
on all other parties.
    (b) Except for motions made during a prehearing conference or at the 
hearing, all motions shall be in writing. The ALJ may require that oral 
motions be reduced to writing.
    (c) Within 15 days after a written motion is served, or such other 
time as may be fixed by the ALJ, any party may file a response to such 
motion.
    (d) The ALJ may not grant a written motion before the time for 
filing responses thereto has expired, except upon consent of the parties 
or following a hearing on the motion, but may overrule or deny such 
motion without awaiting a response.
    (e) The ALJ shall make a reasonable effort to dispose of all 
outstanding motions prior to the beginning of the hearing.



Sec. 35.29  Sanctions.

    (a) The ALJ may sanction a person, including any party or 
representative for--
    (1) Failing to comply with an order, rule, or procedure governing 
the proceeding;
    (2) Failing to prosecute or defend an action; or
    (3) Engaging in other misconduct that interferes with the speedy, 
orderly, or fair conduct of the hearing.
    (b) Any such sanction, including but not limited to those listed in 
paragraphs (c), (d), and (e) of this section, shall reasonably relate to 
the severity and nature of the failure or misconduct.
    (c) When a party fails to comply with an order, including an order 
for taking a deposition, the production of evidence within the party's 
control, or a request for admission, the ALJ may--
    (1) Draw an inference in favor of the requesting party with regard 
to the information sought;
    (2) In the case of requests for admission, deem each matter of which 
an admission is requested to be admitted;
    (3) Prohibit the party failing to comply with such order from 
introducing evidence concerning, or otherwise relying upon, testimony 
relating to the information sought; and
    (4) Strike any part of the pleadings or other submissions of the 
party failing to comply with such request.
    (d) If a party fails to prosecute or defend an action under this 
part commenced by service of a notice of hearing, the ALJ may dismiss 
the action or may issue an initial decision imposing penalties and 
assessments.
    (e) The ALJ may refuse to consider any motion, request, response, 
brief or other document which is not filed in a timely fashion.



Sec. 35.30  The hearing and burden of proof.

    (a) The ALJ shall conduct a hearing on the record in order to 
determine whether the defendant is liable for a civil penalty or 
assessment under Sec. 35.3 and, if so, the appropriate amount of any 
such civil penalty or assessment considering any aggravating or 
mitigating factors.
    (b) The authority shall prove defendant's liability and any 
aggravating factors by a preponderance of the evidence.
    (c) The defendant shall prove any affirmative defenses and any 
mitigating factors by a preponderance of the evidence.

[[Page 130]]

    (d) The hearing shall be open to the public unless otherwise ordered 
by the ALJ for good cause shown.



Sec. 35.31  Determining the amount of penalties and assessments.

    (a) In determining an appropriate amount of civil penalties and 
assessments, the ALJ and the authority head, upon appeal, should 
evaluate any circumstances that mitigate or aggravate the violation and 
should articulate in their opinions the reasons that support the 
penalties and assessments they impose. Because of the intangible costs 
of fraud, the expense of investigating such conduct, and the need to 
deter others who might be similarly tempted, ordinarily double damages 
and a significant civil penalty should be imposed.
    (b) Although not exhaustive, the following factors are among those 
that may influence the ALJ and the authority head in determining the 
amount of penalties and assessments to impose with respect to the 
misconduct (i.e., the false, fictitious, or fraudulent claims or 
statements) charged in the complaint:
    (1) The number of false, fictitious, or fraudulent claims or 
statements;
    (2) The time period over which such claims or statements were made;
    (3) The degree of the defendant's culpability with respect to the 
misconduct;
    (4) The amount of money or the value of the property, services, or 
benefit falsely claimed;
    (5) The value of the Government's actual loss as a result of the 
misconduct, including foreseeable consequential damages and the costs of 
investigation;
    (6) The relationship of the amount imposed as civil penalties to the 
amount of the Government's loss;
    (7) The potential or actual impact of the misconduct upon national 
defense, public health or safety, or public confidence in the management 
of government programs and operations, including particularly the impact 
on the intended beneficiaries of such programs;
    (8) Whether the defendant has engaged in a pattern of the same or 
similar misconduct;
    (9) Whether the defendant attempted to conceal the misconduct;
    (10) The degree to which the defendant has involved others in the 
misconduct or in concealing it;
    (11) Where the misconduct of employees or agents is imputed to the 
defendant, the extent to which the defendant's practices fostered or 
attempted to preclude such misconduct;
    (12) Whether the defendant cooperated in or obstructed an 
investigation of the misconduct;
    (13) Whether the defendant assisted in identifying and prosecuting 
other wrongdoers;
    (14) The complexity of the program or transaction, and the degree of 
the defendant's sophistication with respect to it, including the extent 
of the defendant's prior participation in the program or in similar 
transactions;
    (15) Whether the defendant has been found, in any criminal, civil, 
or administrative proceeding to have engaged in similar misconduct or to 
have dealt dishonestly with the Government of the United States or of a 
state, directly or indirectly; and
    (16) The need to deter the defendant and others from engaging in the 
same or similar misconduct.
    (c) Nothing in this section shall be construed to limit the ALJ or 
the authority head from considering any other factors that in any given 
case may mitigate or aggravate the offense for which penalties and 
assessments are imposed.



Sec. 35.32  Location of hearing.

    (a) The hearing may be held--
    (1) In any judicial district of the United States in which the 
defendant resides or transacts business;
    (2) In any judicial district of the United States in which the claim 
or statement in issue was made; or
    (3) In such other place within the United States as may be agreed 
upon by the defendant and the ALJ.
    (b) Each party shall have the opportunity to present argument with 
respect to the location of the hearing.
    (c) The hearing shall be held at the place and at the time ordered 
by the ALJ.



Sec. 35.33  Witnesses.

    (a) Except as provided in paragraph (b) of this section, testimony 
at the

[[Page 131]]

hearing shall be given orally by witnesses under oath or affirmation.
    (b) At the discretion of the ALJ, testimony may be admitted in the 
form of a written statement or deposition. Any such written statement 
must be provided to all other parties along with the last known address 
of such witness, in a manner which allows sufficient time for other 
parties to subpoena such witness for cross-examination at the hearing. 
Prior written statements of witnesses proposed to testify at the hearing 
and deposition transcripts shall be exchanged as provided in Sec. 
35.22(a).
    (c) The ALJ shall exercise reasonable control over the mode and 
order of interrogating witnesses and presenting evidence in order to 
make--
    (1) The interrogation and presentation effective for the 
ascertainment of the truth;
    (2) To avoid needless consumption of time; and
    (3) To protect witnesses from harassment or undue embarrassment.
    (d) The ALJ shall permit the parties to conduct such cross-
examination as may be required for a full and true disclosure of the 
facts.
    (e) At the discretion of the ALJ, a witness may be cross-examined on 
matters relevant to the proceeding without regard to the scope of his or 
her direct examination. To the extent permitted by the ALJ, cross-
examination on matters outside the scope of direct examination shall be 
conducted in the manner of direct examination and may proceed by leading 
questions only if the witness is a hostile witness, an adverse party, or 
a witness identified with an adverse party.
    (f) Upon motion of any party, the ALJ shall order witnesses excluded 
so that they cannot hear the testimony of other witnesses. This rule 
does not authorize exclusion of--
    (1) A party who is an individual;
    (2) In the case of a party that is not an individual, an officer or 
employee of the party designated by the party's representative; or
    (3) An individual whose presence is shown by a party to be essential 
to the presentation of its case, including an individual employed by the 
Government engaged in assisting the representative for the Government.



Sec. 35.34  Evidence.

    (a) The ALJ shall determine the admissibility of evidence.
    (b) Except as provided herein, the ALJ shall not be bound by the 
Federal Rules of Evidence. However, the ALJ may apply the Federal Rules 
of Evidence where appropriate, e.g., to exclude unreliable evidence.
    (c) The ALJ shall exclude irrelevant and immaterial evidence.
    (d) Although relevant, evidence may be excluded if its probative 
value is substantially outweighed by the danger of unfair prejudice, 
confusion of the issues, or by considerations of undue delay or needless 
presentation of cumulative evidence.
    (e) Although relevant, evidence may be excluded if it is classified 
or otherwise privileged under Federal law.
    (f) Evidence concerning offers or compromise or settlement shall be 
inadmissible to the extent provided in Rule 408 of the Federal Rules of 
Evidence.
    (g) The ALJ shall permit the parties to introduce rebuttal witnesses 
and evidence.
    (h) All documents and other evidence offered or taken for the record 
shall be open to examination by all parties, unless otherwise ordered by 
the ALJ pursuant to Sec. 35.24.



Sec. 35.35  The record.

    (a) The hearing will be recorded and transcribed. Transcripts may be 
obtained following the hearing from the ALJ at a cost not to exceed the 
actual cost of duplication.
    (b) The transcript of testimony, exhibits and other evidence 
admitted at the hearing, and all papers and requests filed in the 
proceeding constitute the record for the decision by the ALJ and the 
authority head.
    (c) The record may be inspected and copied (upon payment of a 
reasonable fee) by anyone, unless otherwise ordered by the ALJ pursuant 
to Sec. 35.24.



Sec. 35.36  Post-hearing briefs.

    The ALJ may require the parties to file post-hearing briefs. In any 
event, any party may file a post-hearing brief.

[[Page 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.



Sec. 35.37  Initial decision.

    (a) The ALJ shall issue an initial decision based only on the 
record, which shall contain findings of fact, conclusions of law, and 
the amount of any penalties and assessments imposed.
    (b) The findings of fact shall include a finding on each of the 
following issues:
    (1) Whether the claims or statements identified in the complaint, or 
any portions thereof, violate Sec. 35.3; and
    (2) If the person is liable for penalties or assessments, the 
appropriate amount of any such penalties or assessments considering any 
mitigating or aggravating factors that he or she finds in the case, such 
as those described in Sec. 35.31.
    (c) The ALJ shall promptly serve the initial decision on all parties 
within 90 days after the time for submission of post-hearing briefs and 
reply briefs (if permitted) has expired. The ALJ shall at the same time 
serve all defendants with a statement describing the right of any 
defendant determined to be liable for a civil penalty or assessment to 
file a motion for reconsideration with the ALJ or a notice of appeal 
with the authority head. If the ALJ fails to meet the deadline contained 
in this paragraph, he or she shall notify the parties of the reason for 
the delay and shall set a new deadline.
    (d) Unless the initial decision of the ALJ is timely appealed to the 
authority head, or a motion for reconsideration of the initial decision 
is timely filed, the initial decision shall constitute the final 
decision of the authority head and shall be final and binding on the 
parties 30 days after it is issued by the ALJ.



Sec. 35.38  Reconsideration of initial decision.

    (a) Except as provided in paragraph (d) of this section, any party 
may file a motion for reconsideration of the initial decision within 20 
days of receipt of the initial decision. If service was made by mail 
within the United States, receipt will be presumed to be five days from 
the date of mailing in the absence of contrary proof.
    (b) Every such motion must set forth the matters claimed to have 
been erroneously decided and the nature of the alleged errors. Such 
motion shall be accompanied by a supporting brief.
    (c) Responses to such motions shall be allowed only upon request of 
the ALJ.
    (d) No party may file a motion for reconsideration of an initial 
decision that has been revised in response to a previous motion for 
reconsideration.
    (e) The ALJ may dispose of a motion for reconsideration by denying 
it or by issuing a revised initial decision.
    (f) If the ALJ denies a motion for reconsideration of the initial 
decision, the initial decision shall constitute the final decision of 
the authority head and shall be final and binding on the parties 30 days 
after the ALJ denies the motion, unless the initial decision is timely 
appealed to the authority head in accordance with Sec. 35.39.
    (g) If the ALJ issues a revised initial decision, that decision 
shall constitute the final decision of the authority head and shall be 
final and binding on the parties 30 days after it is issued, unless it 
is timely appealed to the authority head in accordance with Sec. 35.39.



Sec. 35.39  Appeal to authority head.

    (a) Any defendant who has filed a timely answer and who is 
determined in an initial decision to be liable for a civil penalty or 
assessment may appeal such decision to the authority head by filing a 
notice of appeal with the authority head in accordance with this 
section.
    (b)(1) No notice of appeal may be filed until the time period for 
filing a motion for reconsideration under Sec. 35.38 has expired.
    (2) If a motion for reconsideration is timely filed, a notice of 
appeal must be filed within 30 days after the ALJ denies the motion or 
issues a revised initial decision, whichever applies.
    (3) If no motion for reconsideration is timely filed, a notice of 
appeal must be

[[Page 133]]

filed within 30 days after the ALJ issues the initial decision.
    (4) The authority head may extend the initial 30-day period for an 
additional 30 days if the defendant files with the authority head a 
request for an extension within the initial 30-day period and shows good 
cause.
    (c) If the defendant files a timely notice of appeal with the 
authority head and the time for filing motions for reconsideration under 
Sec. 35.38 has expired, the ALJ shall forward the record of the 
proceeding to the authority head.
    (d) A notice of appeal shall be accompanied by a written brief 
specifying exceptions to the initial decision and reasons supporting the 
exceptions.
    (e) The representative for the Government may file a brief in 
opposition to exceptions within 30 days of receiving the notice of 
appeal and accompanying brief.
    (f) There is no right to appear personally before the authority 
head.
    (g) There is no right to appeal any interlocutory ruling by the ALJ.
    (h) In reviewing the initial decision, the authority head shall not 
consider any objection that was not raised before the ALJ unless a 
demonstration is any objection that was not raised before the ALJ unless 
a demonstration is made of extraordinary circumstances causing the 
failure to raise the objection.
    (i) If any party demonstrates to the satisfaction of the authority 
head that additional evidence not presented at such hearing is material 
and that there were reasonable grounds for the failure to present such 
evidence at such hearing, the authority head shall remand the matter to 
the ALJ for consideration of such additional evidence.
    (j) The authority head may affirm, reduce, reverse, compromise, 
remand, or settle any penalty or assessment, determined by the ALJ in 
any initial decision.
    (k) The authority head shall promptly serve each party to the appeal 
with a copy of the decision of the authority head and a statement 
describing the right of the defendant to seek judicial review.
    (l) Unless a petition for review is filed as provided in 31 U.S.C. 
3805 after a defendant has exhausted all administrative remedies under 
this part and within 60 days after the date on which the authority head 
serves the defendant with a copy of the authority head's decision, a 
determination that a defendant is liable under Sec. 35.3 is final and 
is not subject to judicial review.



Sec. 35.40  Stays ordered by the Department of Justice.

    If at any time the Attorney General or an Assistant Attorney General 
designated by the Attorney General transmits to the authority head a 
written finding that continuation of the administrative process 
described in this part with respect to a claim or statement may 
adversely affect any pending or potential criminal or civil action 
related to such claim or statement, the authority head shall stay the 
process immediately. The authority head may order the process resumed 
only upon receipt of the written authorization of the Attorney General.



Sec. 35.41  Stay pending appeal.

    (a) An initial decision is stayed automatically pending disposition 
of a motion for reconsideration or of an appeal to the authority head.
    (b) No administrative stay is available following a final decision 
of the authority head.



Sec. 35.42  Judicial review.

    Section 3805 of title 31, United States Code, authorizes judicial 
review by an appropriate United States District Court of a final 
decision of the authority head imposing penalties or assessments under 
this part and specifies the procedures for such review.



Sec. 35.43  Collection of civil penalties and assessments.

    Sections 3806 and 3808(b) of title 31, United States Code, authorize 
actions for collection of civil penalties and assessments imposed under 
this part and specify the procedures for such actions.



Sec. 35.44  Right to administrative offset.

    The amount of any penalty or assessment which has become final, or 
for which a judgment has been entered under Sec. 35.42 or Sec. 35.43, 
or any amount agreed upon in a compromise or settlement under Sec. 
35.46, may be collected by

[[Page 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.



Sec. 35.45  Deposit in Treasury of United States.

    All amounts collected pursuant to this part shall be deposited as 
miscellaneous receipts in the Treasury of the United States, except as 
provided in 31 U.S.C. 3806(g).



Sec. 35.46  Compromise or settlement.

    (a) Parties may make offers of compromise or settlement at any time.
    (b) The reviewing official has the exclusive authority to compromise 
or settle a case under this part at any time after the date on which the 
reviewing official is permitted to issue a complaint and before the date 
on which the ALJ issues an initial decision.
    (c) The authority head has exclusive authority to compromise or 
settle a case under this part at any time after the date on which the 
ALJ issues an initial decision, except during the pendency of any review 
under Sec. 35.42 or during the pendency of any action to collect 
penalties and assessments under Sec. 35.43.
    (d) The Attorney General has exclusive authority to compromise or 
settle a case under this part during the pendency of any review under 
Sec. 35.42 or of any action to recover penalties and assessments under 
31 U.S.C. 3806.
    (e) The investigating official may recommend settlement terms to the 
reviewing official, the authority head, or the Attorney General, as 
appropriate. The reviewing official may recommend settlement terms to 
the authority head, or the Attorney General, as appropriate.
    (f) Any compromise or settlement must be in writing.



Sec. 35.47  Limitations.

    (a) The notice of hearing with respect to a claim or statement must 
be served in the manner specified in Sec. 35.8 within six years after 
the date on which such claim or statement is made.
    (b) If the defendant fails to file a timely answer, service of 
notice under Sec. 35.10(b) shall be deemed a notice of hearing for 
purposes of this section.
    (c) The statute of limitations may be extended by agreement of the 
parties.

[[Page 135]]



                           SUBCHAPTER E_VISAS



PART 40_REGULATIONS PERTAINING TO BOTH NONIMMIGRANTS AND IMMIGRANTS UNDER THE 

IMMIGRATION AND NATIONALITY ACT, AS AMENDED--Table of Contents




                      Subpart A_General Provisions

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

               Subpart B_Medical Grounds of Ineligibility

40.11 Medical grounds of ineligibility.
40.12-40.19 [Reserved]

   Subpart C_Criminal and Related Grounds_Conviction of Certain Crimes

40.21 Crimes involving moral turpitude and controlled substance 
          violators.
40.22 Multiple criminal convictions.
40.23 Controlled substance traffickers. [Reserved]
40.24 Prostitution and commercialized vice.
40.25 Certain aliens involved in serious criminal activity who have 
          asserted immunity from prosecution. [Reserved]
40.26-40.29 [Reserved]

                 Subpart D_Security and Related Grounds

40.31 General. [Reserved]
40.32 Terrorist activities. [Reserved]
40.33 Foreign policy. [Reserved]
40.34 Immigrant membership in totalitarian party.
40.35 Participants in Nazi persecutions or genocide. [Reserved]
40.36-40.39 [Reserved]

                         Subpart E_Public Charge

40.41 Public charge.
40.42-40.49 [Reserved]

 Subpart F_Labor Certification and Qualification for Certain Immigrants

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

          Subpart G_Illegal Entrants and Immigration Violators

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

                  Subpart H_Documentation Requirements

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

                  Subpart I_Ineligible for Citizenship

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

                   Subpart J_Aliens Previously Removed

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

                         Subpart K_Miscellaneous

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

                  Subpart L_Failure to Comply with INA

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

[[Page 136]]

40.206 Frivolous applications. [Reserved]
40.207-40.210 [Reserved]

               Subpart M_Waiver of Ground of Ineligibility

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

    Authority: 8 U.S.C. 1104.

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

    Editorial Note: Nomenclature changes to part 40 appear at 71 FR 
34520 and 34521, June 15, 2006.



                      Subpart A_General Provisions



Sec. 40.1  Definitions.

    The following definitions supplement definitions contained in the 
Immigration and Nationality Act (INA). As used in the regulations in 
parts 40, 41, 42, 43 and 45 of this subchapter, the term:
    (a)(1) Accompanying or accompanied by means not only an alien in the 
physical company of a principal alien but also an alien who is issued an 
immigrant visa within 6 months of:
    (i) The date of issuance of a visa to the principal alien;
    (ii) The date of adjustment of status in the United States of the 
principal alien; or
    (iii) The date on which the principal alien personally appears and 
registers before a consular officer abroad to confer alternate foreign 
state chargeability or immigrant status upon a spouse or child.
    (2) An ``accompanying'' relative may not precede the principal alien 
to the United States.
    (b) Act means the Immigration and Nationality Act (or INA), as 
amended.
    (c) Competent officer, as used in INA 101(a)(26), means a ``consular 
officer'' as defined in INA 101(a)(9).
    (d) Consular officer, as defined in INA 101(a)(9) includes 
commissioned consular officers and the Deputy Assistant Secretary for 
Visa Services, and such other officers as the Deputy Assistant Secretary 
may designate for the purpose of issuing nonimmigrant and immigrant 
visas, but does not include a consular agent, an attach[eacute] or an 
assistant attach[eacute]. For purposes of this regulation, the term 
``other officers'' includes civil service visa examiners employed by the 
Department of State for duty at visa-issuing offices abroad, upon 
certification by the chief of the consular section under whose direction 
such examiners are employed that the examiners are qualified by 
knowledge and experience to perform the functions of a consular officer 
in the issuance or refusal of visas. The designation of visa examiners 
shall expire upon termination of the examiners' employment for such duty 
and may be terminated at any time for cause by the Deputy Assistant 
Secretary. The assignment by the Department of any foreign service 
officer to a diplomatic or consular office abroad in a position 
administratively designated as requiring, solely, partially, or 
principally, the performance of consular functions, and the initiation 
of a request for a consular commission, constitutes designation of the 
officer as a ``consular officer'' within the meaning of INA 101(a)(9).
    (e) Department means the Department of State of the United States of 
America.
    (f) Dependent area means a colony or other component or dependent 
area overseas from the governing foreign state.
    (g) DHS means the Department of Homeland Security.
    (h) Documentarily qualified means that the alien has reported that 
all the documents specified by the consular officer as sufficient to 
meet the requirements of INA 222(b) have been obtained, and the consular 
office has completed the necessary clearance procedures. This term is 
used only with respect to the alien's qualification to apply formally 
for an immigrant visa; it bears no connotation that the alien is 
eligible to receive a visa.
    (i) Entitled to immigrant classification means that the alien:
    (1) Is the beneficiary of an approved petition granting immediate 
relative or preference status;
    (2) Has satisfied the consular officer as to entitlement to special 
immigrant status under INA 101(a)(27) (A) or (B);
    (3) Has been selected by the annual selection system to apply under 
INA 203(c); or
    (4) Is an alien described in Sec. 40.51(c).

[[Page 137]]

    (j) Foreign state, for the purposes of alternate chargeability 
pursuant to INA 202(b), is not restricted to those areas to which the 
numerical limitation prescribed by INA 202(a) applies but includes 
dependent areas, as defined in this section.
    (k) INA means the Immigration and Nationality Act, as amended.
    (l) Make or file an application for a visa means:
    (1) For a nonimmigrant visa applicant, submitting for formal 
adjudication by a consular officer of an electronic application, Form 
DS-160, signed electronically by clicking the box designated ``Sign 
Application'' in the certification section of the application or, as 
directed by a consular officer, a completed Form DS-156, with any 
required supporting documents and biometric data, as well as the 
requisite processing fee or evidence of the prior payment of the 
processing fee when such documents are received and accepted for 
adjudication by the consular officer.
    (2) For an immigrant visa applicant, personally appearing before a 
consular officer and verifying by oath or affirmation the statements 
contained on 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.
    (m) Native means born within the territory of a foreign state, or 
entitled to be charged for immigration purposes to that foreign state 
pursuant to INA section 202(b).
    (n) Not subject to numerical limitation means that the alien is 
entitled to immigrant status as an immediate relative within the meaning 
of INA 201(b)(2)(i), or as a special immigrant within the meaning of INA 
101(a)(27) (A) and (B), unless specifically subject to a limitation 
other than under INA 201(a), (b), or (c).
    (o) Parent, father, and mother, as defined in INA 101(b)(2), are 
terms which are not changed in meaning if the child becomes 21 years of 
age or marries.
    (p) Port of entry means a port or place designated by the DHS at 
which an alien may apply to DHS for admission into the United States.
    (q) Principal alien means an alien from whom another alien derives a 
privilege or status under the law or regulations.
    (r) Regulation means a rule which is established under the 
provisions of INA 104(a) and is duly published in the Federal Register.
    (s) Son or daughter includes only a person who would have qualified 
as a ``child'' under INA 101(b)(1) if the person were under 21 and 
unmarried.
    (t) Western Hemisphere means North America (including Central 
America), South America and the islands immediately adjacent thereto 
including the places named in INA 101(b)(5).

[56 FR 30422, July 2, 1991, as amended at 56 FR 43552, Sept. 3, 1991; 59 
FR 15300, Mar. 31, 1994; 61 FR 1835, Jan. 24, 1996; 64 FR 55418, Oct. 
13, 1999; 65 FR 54413, Sept. 8, 2000; 71 FR 34520, June 15, 2006; 73 FR 
23068, Apr. 29, 2008]



Sec. 40.2  Documentation of nationals.

    (a) Nationals of the United States. A national of the United States 
shall not be issued a visa or other documentation as an alien for entry 
into the United States.
    (b) Former Nationals of the United States. A former national of the 
United States who seeks to enter the United States must comply with the 
documentary requirements applicable to aliens under the INA.



Sec. 40.3  Entry into areas under U.S. administration.

    An immigrant or nonimmigrant seeking to enter an area which is under 
U.S. administration but which is not within the ``United States'', as 
defined in INA 101(a)(38), is not required by the INA to be documented 
with a visa unless the authority contained in INA 215 has been invoked.



Sec. 40.4  Furnishing records and information from visa files for court 

proceedings.

    Upon receipt of a request for information from a visa file or record 
for use in court proceedings, as contemplated in INA 222(f), the 
consular officer must, prior to the release of the information, submit 
the request together with a full report to the Department.

[[Page 138]]



Sec. 40.5  Limitations on the use of National Crime Information Center (NCIC) 

criminal history information.

    (a) Authorized access. The FBI's National Crime Information Center 
(NCIC) criminal history records are law enforcement sensitive and can 
only be accessed by authorized consular personnel with visa processing 
responsibilities.
    (b) Use of information. NCIC criminal history record information 
shall be used solely to determine whether or not to issue a visa to an 
alien or to admit an alien to the United States. All third party 
requests for access to NCIC criminal history record information shall be 
referred to the FBI.
    (c ) Confidentiality and protection of records. To protect 
applicants' privacy, authorized Department personnel must secure all 
NCIC criminal history records, automated or otherwise, to prevent access 
by unauthorized persons. Such criminal history records must be 
destroyed, deleted or overwritten upon receipt of updated versions.

[67 FR 8478, Feb. 25, 2002]



Sec. 40.6  Basis for refusal.

    A visa can be refused only upon a ground specifically set out in the 
law or implementing regulations. The term ``reason to believe'', as used 
in INA 221(g), shall be considered to require a determination based upon 
facts or circumstances which would lead a reasonable person to conclude 
that the applicant is ineligible to receive a visa as provided in the 
INA and as implemented by the regulations. Consideration shall be given 
to any evidence submitted indicating that the ground for a prior refusal 
of a visa may no longer exist. The burden of proof is upon the applicant 
to establish eligibility to receive a visa under INA 212 or any other 
provision of law or regulation.



Sec. Sec. 40.7-40.8  [Reserved]



Sec. 40.9  Classes of inadmissible aliens.

    Subparts B through L describe classes of inadmissible aliens who are 
ineligible to receive visas and who shall be ineligible for admission 
into the United States, except as otherwise provided in the Immigration 
and Nationality Act, as amended.

[61 FR 59184, Nov. 21, 1996]



               Subpart B_Medical Grounds of Ineligibility



Sec. 40.11  Medical grounds of ineligibility.

    (a) Decision on eligibility based on findings of medical doctor. A 
finding of a panel physician designated by the post in whose 
jurisdiction the examination is performed pursuant to INA 212(a)(1) 
shall be binding on the consular officer, except that the officer may 
refer a panel physician finding in an individual case to USPHS for 
review.
    (b) Waiver of ineligibility--INA 212(g). If an immigrant visa 
applicant is inadmissible under INA 212(a)(1)(A)(i), (ii), or (iii) but 
is qualified to seek the benefits of INA 212(g)(1)(A) or (B), 
212(g)(2)(C), or 212(g)(3), the consular officer shall inform the alien 
of the procedure for applying to DHS for relief under the applicable 
provision of law. A visa may not be issued to the alien until the 
consular officer has received notification from DHS of the approval of 
the alien's application under INA 212(g), unless the consular officer 
has been delegated authority by the Secretary of Homeland Security to 
grant the particular waiver under INA 212(g).
    (c) Waiver authority--INA 212(g)(2)(A) and (B). The consular officer 
may waive section 212(a)(1)(A)(ii) visa ineligibility if the alien 
qualifies for such waiver under the provisions of INA 212(g)(2)(A) or 
(B).

[56 FR 30422, July 2, 1991, as amended at 62 FR 67567, Dec. 29, 1997]



Sec. Sec. 40.12-40.19  [Reserved]



   Subpart C_Criminal and Related Grounds_Conviction of Certain Crimes



Sec. 40.21  Crimes involving moral turpitude and controlled substance 

violators.

    (a) Crimes involving moral turpitude--(1) Acts must constitute a 
crime under criminal law of jurisdiction where they occurred. A Consular 
Officer may make a

[[Page 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.
    (2) Conviction for crime committed under age 18. (i) An alien will 
not be ineligible to receive a visa under INA 212(a)(2)(A)(i)(I) by 
reason of any offense committed:
    (A) Prior to the alien's fifteenth birthday, or
    (B) Between the alien's fifteenth and eighteenth birthdays unless 
such alien was tried and convicted as an adult for a felony involving 
violence as defined in section 1(1) and section 16 of Title 18 of the 
United States Code.
    (ii) An alien tried and convicted as an adult for a violent felony 
offense, as so defined, committed after having attained the age of 
fifteen years, will be subject to the provisions of INA 
212(a)(2)(A)(i)(I) regardless of whether at the time of conviction 
juvenile courts existed within the convicting jurisdiction.
    (3) Two or more crimes committed under age 18. An alien convicted of 
a crime involving moral turpitude or admitting the commission of acts 
which constitute the essential elements of such a crime and who has 
committed an additional crime involving moral turpitude shall be 
ineligible under INA 212(a)(2)(A)(i)(I), even though the crimes were 
committed while the alien was under the age of 18 years.
    (4) Conviction in absentia. A conviction in absentia of a crime 
involving moral turpitude does not constitute a conviction within the 
meaning of INA 212(a)(2)(A)(i)(I).
    (5) Effect of pardon by appropriate U.S. authorities/foreign states. 
An alien shall not be considered ineligible under INA 212(a)(2)(A)(i)(I) 
by reason of a conviction of a crime involving moral turpitude for which 
a full and unconditional pardon has been granted by the President of the 
United States, by the Governor of a State of the United States, by the 
former High Commissioner for Germany acting pursuant to Executive Order 
10062, or by the United States Ambassador to the Federal Republic of 
Germany acting pursuant to Executive Order 10608. A legislative pardon 
or a pardon, amnesty, expungement of penal record or any other act of 
clemency granted by a foreign state shall not serve to remove a ground 
of ineligibility under INA 212(a)(2)(A)(i)(I).
    (6) Political offenses. The term ``purely political offense'', as 
used in INA 212(a)(2)(A)(i)(I), includes offenses that resulted in 
convictions obviously based on fabricated charges or predicated upon 
repressive measures against racial, religious, or political minorities.
    (7) Waiver of ineligibility--INA 212(h). If an immigrant visa 
applicant is ineligible under INA 212(a)(2)(A)(i)(I) but is qualified to 
seek the benefits of INA 212(h), the consular officer shall inform the 
alien of the procedure for applying to DHS for relief under that 
provision of law. A visa may not be issued to the alien until the 
consular officer has received notification from DHS of the approval of 
the alien's application under INA 212(h).
    (b) Controlled substance violators--(1) Date of conviction not 
pertinent. An alien shall be ineligible under INA 212(a)(2)(A)(i)(II) 
irrespective of whether the conviction for a violation of or for 
conspiracy to violate any law or regulation relating to a controlled 
substance, as defined in the Controlled Substance Act (21 U.S.C. 802), 
occurred before, on, or after October 27, 1986.
    (2) Waiver of ineligibility--INA 212(h). If an immigrant visa 
applicant is ineligible under INA 212(a)(2)(A)(i)(II) but is qualified 
to seek the benefits of INA 212(h), the consular officer shall inform 
the alien of the procedure for applying to DHS for relief under that 
provision of law. A visa may not be issued to the alien until the 
consular officer has received notification from DHS of the approval of 
the alien's application under INA 212(h).

[56 FR 30422, July 2, 1991, as amended at 64 FR 55418, Oct. 13, 1999]

[[Page 140]]



Sec. 40.22  Multiple criminal convictions.

    (a) Conviction(s) for crime(s) committed under age 18. An alien 
shall not be ineligible to receive a visa under INA 212(a)(2)(B) by 
reason of any offense committed prior to the alien's fifteenth birthday. 
Nor shall an alien be ineligible under INA 212(a)(2)(B) by reason of any 
offense committed between the alien's fifteenth and eighteenth birthdays 
unless such alien was tried and convicted as an adult for a felony 
involving violence as defined in section 1(l) and section 16 of Title 18 
of the United States Code. An alien, tried and convicted as an adult for 
a violent felony offense, as so defined, committed after having attained 
the age of fifteen years, and who has also been convicted of at least 
one other such offense or any other offense committed as an adult, shall 
be subject to the provisions of INA 212(a)(2)(B) regardless of whether 
at that time juvenile courts existed within the jurisdiction of the 
conviction.
    (b) Conviction in absentia. A conviction in absentia shall not 
constitute a conviction within the meaning of INA 212(a)(2)(B).
    (c) Effect of pardon by appropriate U.S. authorities/foreign states. 
An alien shall not be considered ineligible under INA 212(a)(2)(B) by 
reason in part of having been convicted of an offense for which a full 
and unconditional pardon has been granted by the President of the United 
States, by the Governor of a State of the United States, by the former 
High Commissioner for Germany acting pursuant to Executive Order 10062, 
or by the United States Ambassador to the Federal Republic of Germany 
acting pursuant to Executive Order 10608. A legislative pardon or a 
pardon, amnesty, expungement of penal record or any other act of 
clemency granted by a foreign state shall not serve to remove a ground 
of ineligibility under INA 212(a)(2)(B).
    (d) Political offense. The term ``purely political offense'', as 
used in INA 212(a)(2)(B), includes offenses that resulted in convictions 
obviously based on fabricated charges or predicated upon repressive 
measures against racial, religious, or political minorities.
    (e) Waiver of ineligibility--INA 212(h). If an immigrant visa 
applicant is ineligible under INA 212(a)(2)(B) but is qualified to seek 
the benefits of INA 212(h), the consular officer shall inform the alien 
of the procedure for applying to DHS for relief under that provision of 
law. A visa may not be issued to the alien until the consular officer 
has received notification from DHS of the approval of the alien's 
application under INA 212(h).

[56 FR 30422, July 2, 1991, as amended at 62 FR 67567, Dec. 29, 1997]



Sec. 40.23  Controlled substance traffickers. [Reserved]



Sec. 40.24  Prostitution and commercialized vice.

    (a) Activities within 10 years preceding visa application. An alien 
shall be ineligible under INA 212(a)(2)(D) only if--
    (1) The alien is coming to the United States solely, principally, or 
incidentally to engage in prostitution, or has engaged in prostitution, 
or the alien directly or indirectly procures or attempts to procure, or 
procured or attempted to procure or to import prostitutes or persons for 
the purposes of prostitution, or receives or received, in whole or in 
part, the proceeds of prostitution; and
    (2) The alien has performed one of the activities listed in Sec. 
40.24(a)(1) within the last ten years.
    (b) Prostitution defined. The term ``prostitution'' means engaging 
in promiscuous sexual intercourse for hire. A finding that an alien has 
``engaged'' in prostitution must be based on elements of continuity and 
regularity, indicating a pattern of behavior or deliberate course of 
conduct entered into primarily for financial gain or for other 
considerations of material value as distinguished from the commission of 
casual or isolated acts.
    (c) Where prostitution not illegal. An alien who is within one or 
more of the classes described in INA 212(a)(2)(D) is ineligible to 
receive a visa under that section even if the acts engaged in are not 
prohibited under the laws of the foreign country where the acts 
occurred.
    (d) Waiver of ineligibility--INA 212(h). If an immigrant visa 
applicant is ineligible under INA 212(a)(2)(D) but is qualified to seek 
the benefits of INA

[[Page 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).



Sec. 40.25  Certain aliens involved in serious criminal activity who have 

asserted immunity from prosecution. [Reserved]



Sec. Sec. 40.26-40.29  [Reserved]



                 Subpart D_Security and Related Grounds



Sec. 40.31  General. [Reserved]



Sec. 40.32  Terrorist activities. [Reserved]



Sec. 40.33  Foreign policy. [Reserved]



Sec. 40.34  Immigrant membership in totalitarian party.

    (a) Definition of affiliate. The term affiliate, as used in INA 
212(a)(3)(D), means an oganization which is related to, or identified 
with, a proscribed association or party, including any section, 
subsidiary, branch, or subdivision thereof, in such close association as 
to evidence an adherence to or a furtherance of the purposes and 
objectives of such association or party, or as to indicate a working 
alliance to bring to fruition the purposes and objectives of the 
proscribed association or party. An organization which gives, loans, or 
promises support, money, or other thing of value for any purpose to any 
proscribed association or party is presumed to be an affiliate of such 
association or party, but nothing contained in this paragraph shall be 
construed as an exclusive definition of the term affiliate.
    (b) Service in Armed Forces. Service, whether voluntary or not, in 
the armed forces of any country shall not be regarded, of itself, as 
constituting or establishing an alien's membership in, or affiliation 
with, any proscribed party or organization, and shall not, of itself, 
constitute a ground of ineligibility to receive a visa.
    (c) Voluntary Service in a Political Capacity. Voluntary service in 
a political capacity shall constitute affiliation with the political 
party or organization in power at the time of such service.
    (d) Voluntary Membership After Age 16. If an alien continues or 
continued membership in or affiliation with a proscribed organization on 
or after reaching 16 years of age, only the alien's activities after 
reaching that age shall be pertinent to a determination of whether the 
continuation of membership or affiliation is or was voluntary.
    (e) Operation of Law Defined. The term operation of law, as used in 
INA 212(a)(3)(D), includes any case wherein the alien automatically, and 
without personal acquiescence, became a member of or affiliated with a 
proscribed party or organization by official act, proclamation, order, 
edict, or decree.
    (f) Membership in Organization Advocating Totalitarian Dictatorship 
in the United States. In accordance with the definition of totalitarian 
party contained in INA 101(a)(37), a former or present voluntary member 
of, or an alien who was, or is, voluntarily affiliated with a 
noncommunist party, organization, or group, or of any section, 
subsidiary, branch, affiliate or subdivision thereof, which during the 
time of its existence did not or does not advocate the establishment in 
the United States of a totalitarian dictatorship, is not considered 
ineligible under INA 212(a)(3)(D) to receive a visa.
    (g) Waiver of ineligibility--212(a)(3)(D)(iv). lf an immigrant visa 
applicant is ineligible under INA 212(a)(3)(D) but is qualified to seek 
the benefits of INA 212(a)(3)(D)(iv), the consular officer shall inform 
the alien of the procedure for applying to DHS for relief under that 
provision of law. A visa may not be issued to the alien until the 
consular officer has received notification from DHS of the approval of 
the alien's application under INA 212(a)(3)(D)(iv).



Sec. 40.35  Participants in Nazi persecutions or genocide.

    (a) Participation in Nazi persecutions. [Reserved]
    (b) Participation in genocide. [Reserved]

[[Page 142]]



Sec. Sec. 40.36-40.39  [Reserved]



                         Subpart E_Public Charge



Sec. 40.41  Public charge.

    (a) Basis for Determination of Ineligibility. Any determination that 
an alien is ineligible under INA 212(a)(4) must be predicated upon 
circumstances indicating that, 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).
    (b) Affidavit of support. 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).
    (c) Joint Sponsors. 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.
    (d) Posting of Bond. 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.
    (e) Prearranged Employment. An immigrant visa applicant relying on 
an offer of prearranged employment to establish eligibility under INA 
212(a)(4), other than an offer of employment certified by the Department 
of Labor pursuant to INA 212(a)(5)(A), must provide written confirmation 
of the relevant information sworn and subscribed to before a notary 
public by the employer or an authorized employee or agent of the 
employer. The signer's printed name and position or other relationship 
with the employer must accompany the signature.
    (f) Use of Federal Poverty Line Where INA 213A Not Applicable. 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).

[62 FR 67564, Dec. 29, 1997, as amended at 65 FR 78094, Dec. 14, 2000]



Sec. Sec. 40.42-40.49  [Reserved]



 Subpart F_Labor Certification and Qualification for Certain Immigrants



Sec. 40.51  Labor certification.

    (a) INA 212(a)(5) applicable only to certain immigrant aliens. INA 
212(a)(5)(A) applies only to immigrant aliens described in INA 203(b)(2) 
or (3) who are seeking to enter the United States for the purpose of 
engaging in gainful employment.
    (b) Determination of need for alien's labor skills. An alien within 
one of the classes to which INA 212(a)(5) applies as described in Sec. 
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

[[Page 143]]

    (1) There are not sufficient workers in the United States who are 
able, willing, qualified, (or equally qualified in the case of aliens 
who are members of the teaching profession or who have exceptional 
ability in the sciences or the arts) and available at the time of 
application for a visa and at the place to which the alien is destined 
to perform such skilled or unskilled labor, and
    (2) The employment of such alien will not adversely affect the wages 
and working conditions of the workers in the United States similarly 
employed.
    (c) Labor certification not required in certain cases. A spouse or 
child accompanying or following to join an alien spouse or parent who is 
a beneficiary of a petition approved pursuant to INA 203(b)(2) or (3) is 
not considered to be within the purview of INA 212(a)(5).

[56 FR 30422, July 2, 1991, as amended at 61 FR 1835, Jan. 24, 1996]



Sec. 40.52  Unqualified physicians.

    INA 212(a)(5)(B) applies only to immigrant aliens described in INA 
203(b) (2) or (3).

[61 FR 1835, Jan. 24, 1996, as amended at 62 FR 67567, Dec. 29, 1997]



Sec. 40.53  Uncertified foreign health-care workers.

    (a) Subject to paragraph (b) of this section, a consular officer 
must not issue a visa to any alien seeking admission to the United 
States for the purpose of performing services in a health care 
occupation, other than as a physician, unless, in addition to meeting 
all other requirements of law and regulation, the alien provides to the 
officer a certification issued by the Commission On Graduates of Foreign 
Nursing Schools (CGFNS) or another credentialing service that has been 
approved by the Secretary of Homeland Security for such purpose, which 
certificate complies with the provisions of sections 212(a)(5)(C) and 
212(r) of the Act, 8 U.S.C. 1182(a)(5)(C) and 8 U.S.C. 1182(r), 
respectively, and the regulations found at 8 CFR 212.15.
    (b) Paragraph (a) of this section does not apply to an alien:
    (1) Seeking to enter the United States in order to perform services 
in a non-clinical health care occupation as described in 8 CFR 
212.15(b)(1); or
    (2) Who is the immigrant or nonimmigrant spouse or child of a 
foreign health care worker and who is seeking to accompany or follow to 
join as a derivative applicant the principal alien to whom this section 
applies; or
    (3) Who is applying for an immigrant or a nonimmigrant visa for any 
purpose other than for the purpose of seeking entry into the United 
States in order to perform health care services as described in 8 CFR 
212.15.

[67 FR 77159, Dec. 17, 2002]



Sec. Sec. 40.54-40.59  [Reserved]



          Subpart G_Illegal Entrants and Immigration Violators



Sec. 40.61  Aliens present without admission or parole.

    INA 212(a)(6)(A)(i) does not apply at the time of visa issuance.

[62 FR 67567, Dec. 29, 1997]



Sec. 40.62  Failure to attend removal proceedings.

    An alien who without reasonable cause failed to attend, or to remain 
in attendance at, a hearing initiated on or after April 1, 1997, under 
INA 240 to determine inadmissibility or deportability shall be 
ineligible for a visa under INA 212(a)(6)(B) for five years following 
the alien's subsequent departure or removal from the United States.

[62 FR 67567, Dec. 29, 1997]



Sec. 40.63  Misrepresentation; Falsely claiming citizenship.

    (a) Fraud and misrepresentation and INA 212(a)(6)(C) applicability 
to certain refugees. An alien who seeks to procure, or has sought to 
procure, or has procured a visa, other documentation, or entry into the 
United States or other benefit provided under the INA by fraud or by 
willfully misrepresenting a material fact at any time shall be 
ineligible under INA 212(a)(6)(C); Provided, That the provisions of this 
paragraph are not applicable if the fraud or misrepresentation was 
committed by an alien at the time the alien sought entry into a country 
other than the

[[Page 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: Provided further, That the fraud or 
misrepresentation was not committed by such refugee for the purpose of 
evading the quota or numerical restrictions of the U.S. immigration 
laws, or investigation of the alien's record at the place of former 
residence or elsewhere in connection with an application for a visa.
    (b) Misrepresentation in application under Displaced Persons Act or 
Refugee Relief Act. Subject to the conditions stated in INA 
212(a)(6)(c)(i), an alien who is found by the consular officer to have 
made a willful misrepresentation within the meaning of section 10 of the 
Displaced Persons Act of 1948, as amended, for the purpose of gaining 
admission into the United States as an eligible displaced person, or to 
have made a material misrepresentation within the meaning of section 
11(e) of the Refugee Relief Act of 1953, as amended, for the purpose of 
gaining admission into the United States as an alien eligible thereunder 
, shall be considered ineligible under the provisions of INA 
212(a)(6)(C).
    (c) Waiver of ineligibility--INA 212(i). If an immigrant applicant 
is ineligible under INA 212(a)(6)(C) but is qualified to seek the 
benefits of INA 212(i), the consular officer shall inform the alien of 
the procedure for applying to DHS for relief under that provision of 
law. A visa may not be issued to the alien until the consular officer 
has received notification from DHS of the approval of the alien's 
application under INA 212(i).

[56 FR 30422, July 2, 1991, as amended at 61 FR 1835, Jan. 24, 1996]



Sec. 40.64  Stowaways.

    INA 212(a)(6)(D) is not applicable at the time of visa application.



Sec. 40.65  Smugglers.

    (a) General. A visa shall not be issued to an alien who at any time 
knowingly has encouraged, induced, assisted, abetted, or aided any other 
alien to enter or to try to enter the United States in violation of law.
    (b) Waiver of ineligibility--INA 212(d)(11). If an immigrant 
applicant is ineligible under INA 212(a)(6)(E) but is qualified to seek 
the benefits of INA 212(d)(11), the consular officer shall inform the 
alien of the procedure for applying to DHS for relief under that 
provision of law. A visa may not be issued to the alien until the 
consular officer has received notification from DHS of the approval of 
the alien's application under INA 212(d)(11).



Sec. 40.66  Subject of civil penalty.

    (a) General. An alien who is the subject of a final order imposing a 
civil penalty for a violation under INA 274C shall be ineligible for a 
visa under INA 212(a)(6)(F).
    (b) Waiver of ineligibility. If an applicant is ineligible under 
paragraph (a) of this section but appears to the consular officer to 
meet the prerequisites for seeking the benefits of INA 212(d)(12), the 
consular officer shall inform the alien of the procedure for applying to 
DHS for relief under that provision of law. A visa may not be issued to 
the alien until the consular officer has received notification from DHS 
of the approval of the alien's application under INA 212(d)(12).

[62 FR 67567, Dec. 29, 1997]



Sec. 40.67  Student visa abusers.

    An alien ineligible under the provisions of INA 212(a)(6)(G) shall 
not be issued a visa unless the alien has complied with the time 
limitation set forth therein.

[62 FR 67568, Dec. 29, 1997]



Sec. 40.68  Aliens subject to INA 222(g).

    An alien who, under the provisions of INA 222(g), has voided a 
nonimmigrant visa by remaining in the United States beyond the period of 
authorized stay is ineligible for a new nonimmigrant visa unless the 
alien complies with the requirements in 22 CFR 41.101 (b) or (c) 
regarding the place of application.

[63 FR 671, Jan. 7, 1998]

[[Page 145]]



Sec. 40.69  [Reserved]



                  Subpart H_Documentation Requirements



Sec. 40.71  Documentation requirements for immigrants.

    INA 212(a)(7)(A) is not applicable at the time of visa application. 
(For waiver of documentary requirements for immigrants see 22 CFR 42.1 
and 42.2.)



Sec. 40.72  Documentation requirements for nonimmigrants.

    A passport which is valid indefinitely for the return of the bearer 
to the country whose government issued such passport shall be deemed to 
have the required minimum period of validity as specified in INA 
212(a)(7)(B).



Sec. Sec. 40.73-40.79  [Reserved]



                  Subpart I_Ineligible for Citizenship.



Sec. 40.81  Ineligible for citizenship.

    An alien will be ineligible to receive an immigrant visa under INA 
212(a)(8)(A) if the alien is ineligible for citizenship, including as 
provided in INA 314 or 315.

[64 FR 55418, Oct. 13, 1999]



Sec. 40.82  Alien who departed the United States to avoid service in the armed 

forces.

    (a) Applicability to immigrants. INA 212(a)(8)(A) applies to 
immigrant visa applicants who have departed from or remained outside the 
United States between September 8, 1939 and September 24, 1978, to avoid 
or evade training or service in the United States Armed Forces.
    (b) Applicability to nonimmigrants. INA 212(a)(8)(B) applies to 
nonimmigrant visa applicants who have departed from or remained outside 
the United States between September 8, 1939 and September 24, 1978 to 
avoid or evade training or service in the U.S. Armed Forces except an 
alien who held nonimmigrant status at the time of such departure.



Sec. Sec. 40.83-40.89  [Reserved]



                   Subpart J_Aliens Previously Removed

    Source: 61 FR 59184, Nov. 21, 1996, unless otherwise noted.



Sec. 40.91  Certain aliens previously removed.

    (a) 5-year bar. An alien who has been found inadmissible, whether as 
a result of a summary determination of inadmissibility at the port of 
entry under INA 235(b)(1) or of a finding of inadmissibility resulting 
from proceedings under INA 240 initiated upon the alien's arrival in the 
United States, shall be ineligible for a visa under INA 212(a)(9)(A)(i) 
for 5 years following such alien's first removal from the United States.
    (b) 10-year bar. An alien who has otherwise been removed from the 
United States under any provision of law, or who departed while an order 
of removal was in effect, is ineligible for a visa under INA 
212(a)(9)(A)(ii) for 10 years following such removal or departure from 
the United States.
    (c) 20-year bar. An alien who has been removed from the United 
States two or more times shall be ineligible for a visa under INA 
212(a)(9)(A)(i) or INA 212(a)(9)(A)(ii), as appropriate, for 20 years 
following the most recent such removal or departure.
    (d) Permanent bar. If an alien who has been removed has also been 
convicted of an aggravated felony, the alien is permanently ineligible 
for a visa under INA 212(a)(9)(A)(i) or 212(a)(9)(A)(ii), as 
appropriate.
    (e) Exceptions. An alien shall not be ineligible for a visa under 
INA 212(a)(9)(A)(i) or (ii) if the Secretary of Homeland Security has 
consented to the alien's application for admission.

[62 FR 67568, Dec. 29, 1997, as amended at 63 FR 64628, Nov. 23, 1998]



Sec. 40.92  Aliens unlawfully present.

    (a) 3-year bar. An alien described in INA 212(a)(9)(B)(i)(I) shall 
be ineligible for a visa for 3 years following departure from the United 
States.
    (b) 10-year bar. An alien described in INA 212(a)(9)(B)(i)(II) shall 
be ineligible

[[Page 146]]

for a visa for 10 years following departure from the United States.
    (c) Waiver. If a visa applicant is inadmissible under paragraph (a) 
or (b) of this section but appears to the consular officer to meet the 
prerequisites for seeking the benefits of INA 212(a)(9)(B)(v), the alien 
shall be informed of the procedure for applying to DHS for relief under 
that provision of law.

[62 FR 67568, Dec. 29, 1997]



Sec. 40.93  Aliens unlawfully present after previous immigration violation.

    An alien described in INA 212(a)(9)(C)(i) is permanently ineligible 
for a visa unless the Secretary of Homeland Security consents to the 
alien's application for readmission not less than 10 years following the 
alien's last departure from the United States. Such application for 
readmission shall be made prior to the alien's reembarkation at a place 
outside the United States.

[62 FR 67568, Dec. 29, 1997]



Sec. Sec. 40.94-40.99  [Reserved]



                         Subpart K_Miscellaneous

    Source: 56 FR 30422, July 2, 1991, unless otherwise noted. 
Redesignated at 61 FR 59184, Nov. 21, 1996.



Sec. 40.101  Practicing polygamists.

    An immigrant alien shall be ineligible under INA 212(a)(9)(A) only 
if the alien is coming to the United States to practice polygamy.



Sec. 40.102  Guardian required to accompany excluded alien.

    INA 212(a)(9)(B) is not applicable at the time of visa application.



Sec. 40.103  International child abduction.

    An alien who would otherwise be ineligible under INA 212(a)(9)(C)(i) 
shall not be ineligible under such paragraph if the U.S. citizen child 
in question is physically located in a foreign state which is party to 
the Hague Convention on the Civil Aspects of International Child 
Abduction.

[61 FR 1833, Jan. 24, 1996]



Sec. 40.104  Unlawful voters.

    (a) Subject to paragraph (b) of this section, an alien is ineligible 
for a visa if the alien has voted in violation of any Federal, State, or 
local constitutional provision, statute, ordinance, or regulation.
    (b) Such alien shall not be considered to be ineligible under 
paragraph (a) of this section if each natural parent of the alien (or, 
in the case of an adopted alien, each adoptive parent of the alien) is 
or was a citizen (whether by birth or naturalization), the alien 
permanently resided in the United States prior to attaining the age of 
16, and the alien reasonably believed at the time of such violation that 
he or she was a citizen.

[70 FR 35527, June 21, 2005]



Sec. 40.105  Former citizens who renounced citizenship to avoid taxation.

    An alien who is a former citizen of the United States, who on or 
after September 30, 1996, has officially renounced United States 
citizenship and who has been determined by the Secretary of Homeland 
Security to have renounced citizenship to avoid United States taxation, 
is ineligible for a visa under INA 212(a)(10)(E).

[62 FR 67568, Dec. 29, 1997]



Sec. Sec. 40.106-40.110  [Reserved]



                  Subpart L_Failure to Comply with INA

    Source: 56 FR 30422, July 2, 1991, unless otherwise noted. 
Redesignated at 61 FR 59184, Nov. 21, 1996.



Sec. 40.201  Failure of application to comply with INA.

    (a) Refusal under INA 221(g). The consular officer shall refuse an 
alien's visa application under INA 221(g)(2) as failing to comply with 
the provisions of INA or the implementing regulations if:
    (1) The applicant fails to furnish information as required by law or 
regulations;
    (2) The application contains a false or incorrect statement other 
than one

[[Page 147]]

which would constitute a ground of ineligibility under INA 212(a)(6)(C);
    (3) The application is not supported by the documents required by 
law or regulations;
    (4) The applicant refuses to be fingerprinted as required by 
regulations;
    (5) The necessary fee is not paid for the issuance of the visa or, 
in the case of an immigrant visa, for the application therefor;
    (6) In the case of an immigrant visa application, the alien fails to 
swear to, or affirm, the application before the consular officer; or
    (7) The application otherwise fails to meet specific requirements of 
law or regulations for reasons for which the alien is responsible.
    (b) Reconsideration of refusals. A refusal of a visa application 
under paragraph (a)(1) of this section does not bar reconsideration of 
the application upon compliance by the applicant with the requirements 
of INA and the implementing regulations or consideration of a subsequent 
application submitted by the same applicant.

[56 FR 30422, July 2, 1991, as amended at 61 FR 1835, Jan. 24, 1996. 
Redesignated at 61 FR 59184, Nov. 21, 1996]



Sec. 40.202  Certain former exchange visitors.

    An alien who was admitted into the United States as an exchange 
visitor, or who acquired such status after admission, and who is within 
the purview of INA 212(e) as amended by the Act of April 7, 1970, (84 
Stat. 116) and by the Act of October 12, 1976, (90 Stat. 2301), is not 
eligible to apply for or receive an immigrant visa or a nonimmigrant 
visa under INA 101(a)(15) (H), (K), or (L), notwithstanding the approval 
of a petition on the alien's behalf, unless:
    (a) It has been established that the alien has resided and has been 
physically present in the country of the alien's nationality or last 
residence for an aggregate of at least 2 years following the termination 
of the alien's exchange visitor status as required by INA 212(e), or
    (b) The foreign residence requirement of INA 212(e) has been waived 
by the Secretary of Homeland Security in the alien's behalf.



Sec. 40.203  Alien entitled to A, E, or G nonimmigrant classification.

    An alien entitled to nonimmigrant classification under INA 
101(a)(15) (A), (E), or (G) who is applying for an immigrant visa and 
who intends to continue the activities required for such nonimmigrant 
classification in the United States is not eligible to receive an 
immigrant visa until the alien executes a written waiver of all rights, 
privileges, exemptions and immunities which would accrue by reason of 
such occupational status.



Sec. 40.204  [Reserved]



Sec. 40.205  Applicant for immigrant visa under INA 203(c).

    An alien shall be ineligible to receive a visa under INA 203(c) if 
the alien does not have a high school education or its equivalent, as 
defined in 22 CFR 42.33(a)(2), or does not have, within the five years 
preceding the date of application for such visa, at least two years of 
work experience in an occupation which requires at least two years of 
training or experience.

[59 FR 55045, Nov. 3, 1994. Redesignated at 61 FR 59184, Nov. 21, 1996]



Sec. 40.206  Frivolous applications. [Reserved]



Sec. Sec. 40.207-40.210  [Reserved]



               Subpart M_Waiver of Ground of Ineligibility

    Source: 56 FR 30422, July 2, 1991, unless otherwise noted. 
Redesignated at 61 FR 59184, Nov. 21, 1996]



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

    (a) Report or recommendation to Department. 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

[[Page 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).
    (b) Recommendation to designated DHS officer abroad. 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).
    (c) Secretary of Homeland Security may impose conditions. 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.



PART 41_VISAS: DOCUMENTATION OF NONIMMIGRANTS UNDER THE IMMIGRATION AND 

NATIONALITY ACT, AS AMENDED--Table of Contents




   Subpart A_Passport and Visas Not Required for Certain Nonimmigrants

Sec.
41.0 Definitions.
41.1 Exemption by law or treaty from passport and visa requirements.
41.2 Exemption or waiver by Secretary of State and Secretary of Homeland 
          Security of passport and/or visa requirements for certain 
          categories of nonimmigrants.
41.3 Waiver by joint action of consular and immigration officers of 
          passport and/or visa requirements.

                Subpart B_Classification of Nonimmigrants

41.11 Entitlement to nonimmigrant status.
41.12 Classification symbols.

                 Subpart C_Foreign Government Officials

41.21 Foreign Officials--General.
41.22 Officials of foreign governments.
41.23 Accredited officials in transit.
41.24 International organization aliens.
41.25 NATO representatives, officials, and employees.
41.26 Diplomatic visas.
41.27 Official visas.

                      Subpart D_Temporary Visitors

41.31 Temporary visitors for business or pleasure.
41.32 Nonresident alien Mexican border crossing identification cards; 
          combined border crossing identification cards and B-1/B-2 
          visitor visa.
41.33 Nonresident alien Canadian border crossing identification card 
          (BCC).

                  Subpart E_Crewman and Crew-List Visas

41.41 Crewmen.
41.42 [Reserved]

                   Subpart F_Business and Media Visas

41.51 Treaty trader, treaty investor, or treaty alien in a specialty 
          occupation.
41.52 Information media representative.
41.53 Temporary workers and trainees.
41.54 Intracompany transferees (executives, managers, and specialists).
41.55 Aliens with extraordinary ability.
41.56 Athletes, artists and entertainers.
41.57 International cultural exchange visitors and visitors under the 
          Irish Peace Process Cultural and Training Program Act 
          (IPPCTPA).
41.58 Aliens in religious occupations.
41.59 Professionals under the North American Free Trade Agreement.

                Subpart G_Students and Exchange Visitors

41.61 Students--academic and nonacademic.
41.62 Exchange visitors.
41.63 Two-year home-country physical presence requirement.

                        Subpart H_Transit Aliens

41.71 Transit aliens.

              Subpart I_Fiance(e)s and Other Nonimmigrants

41.81 Fianc[eacute] or spouse of a U.S. citizen and derivative children.
41.82 Certain parents and children of section 101(a)(27)(I) special 
          immigrants. [Reserved]
41.83 Certain witnesses and informants.
41.84 Victims of trafficking in persons.
41.86 Certain spouses and children of lawful permanent resident aliens.

               Subpart J_Application for Nonimmigrant Visa

41.101 Place of application.
41.102 Personal appearance of applicant.
41.103 Filing an application.
41.104 Passport requirements.
41.105 Supporting documents and fingerprinting.

[[Page 149]]

41.106 Processing.
41.107 Visa fees.
41.108 Medical examination.

                 Subpart K_Issuance of Nonimmigrant Visa

41.111 Authority to issue visa.
41.112 Validity of visa.
41.113 Procedures in issuing visas.

                   Subpart L_Refusals and Revocations

41.121 Refusal of individual visas.
41.122 Revocation of visas.

    Authority: 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).

    Source: 52 FR 42597, Nov. 5, 1987, unless otherwise noted.

    Editorial Note: Nomenclature changes to part 41 appear at 71 FR 
34521 and 34522, June 15, 2006.



   Subpart A_Passport and Visas Not Required for Certain Nonimmigrants



Sec. 41.0  Definitions.

    For purposes of this part and part 53:
    Adjacent islands means Bermuda and the islands located in the 
Caribbean Sea, except Cuba.
    Cruise ship means a passenger vessel over 100 gross tons, carrying 
more than 12 passengers for hire, making a voyage lasting more than 24 
hours any part of which is on the high seas, and for which passengers 
are embarked or disembarked in the United States or its territories.
    Ferry means any vessel operating on a pre-determined fixed schedule 
and route, which is being used solely to provide transportation between 
places that are no more than 300 miles apart and which is being used to 
transport passengers, vehicles, and/or railroad cars.
    Pleasure vessel means a vessel that is used exclusively for 
recreational or personal purposes and not to transport passengers or 
property for hire.
    United States means ``United States'' as defined in section 215(c) 
of the Immigration and Nationality Act of 1952, as amended (8 U.S.C. 
1185(c)).
    U.S. citizen means a United States citizen or a U.S. non-citizen 
national.
    United States qualifying tribal entity means a tribe, band, or other 
group of Native Americans formally recognized by the United States 
Government which agrees to meet WHTI document standards.

[73 FR 18418, Apr. 3, 2008]



Sec. 41.1  Exemption by law or treaty from passport and visa requirements.

    Nonimmigrants in the following categories are exempt from the 
passport and visa requirements of INA 212(a)(7)(B)(i)(I), (i)(II):
    (a) Alien members of the U.S. Armed Forces. An alien member of the 
U.S. Armed Forces in uniform or bearing proper military identification, 
who has not been lawfully admitted for permanent residence, coming to 
the United States under official orders or permit of such Armed Forces 
(Sec. 284, 86 Stat. 232; 8 U.S.C. 1354).
    (b) [Reserved]
    (c) Aliens entering from Guam, Puerto Rico, or the Virgin Islands. 
An alien departing from Guam, Puerto Rico, or the Virgin Islands of the 
United States, and seeking to enter the continental United States or any 
other place under the jurisdiction of the United States (Sec. 212, 66 
Stat. 188; 8 U.S.C. 1182.)
    (d) Armed Services personnel of a NATO member. Personnel belonging 
to the armed services of a government which is a Party to the North 
Atlantic Treaty and which has ratified the Agreement Between the Parties 
to the North Atlantic Treaty Regarding the Status of Their Forces, 
signed at London on June 19, 1951, and entering the United States under 
Article III of that Agreement pursuant to an individual or collective 
movement order issued by an appropriate agency of the sending state or 
of NATO (TIAS 2846; 4 U.S.T. 1792.)
    (e) Armed Services personnel attached to a NATO headquarters in the 
United States. Personnel attached to a NATO Headquarters in the United 
States set up pursuant to the North Atlantic Treaty, belonging to the 
armed services of a government which is a Party to the Treaty and 
entering the United States in connection with their official duties 
under the provisions of the Protocol on the Status of International

[[Page 150]]

Military Headquarters Set Up Pursuant to the North Atlantic Treaty (TIAS 
2978; 5 U.S.T. 875.)
    (f) Aliens entering pursuant to International Boundary and Water 
Commission Treaty. All personnel employed either directly or indirectly 
on the construction, operation, or maintenance of works in the United 
States undertaken in accordance with the treaty concluded on February 3, 
1944, between the United States and Mexico regarding the functions of 
the International Boundary and Water Commission, and entering the United 
States temporarily in connection with such employment (59 Stat. 1252; TS 
994.)

[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; 73 FR 18418, Apr. 3, 
2008]



Sec. 41.2  Exemption or waiver by Secretary of State and Secretary of Homeland 

Security of passport and/or visa requirements for certain categories of 

nonimmigrants.

    Pursuant to the authority of the Secretary of State and the 
Secretary of Homeland Security under the INA, as amended, a passport 
and/or visa is not required for the following categories of 
nonimmigrants:
    (a) Canadian citizens. A visa is not required for an American Indian 
born in Canada having at least 50 percentum of blood of the American 
Indian race. A visa is not required for other Canadian citizens except 
for those who apply for admission in E, K, V, or S nonimmigrant 
classifications as provided in paragraphs (k) and (m) of this section 
and 8 CFR 212.1. A passport is required for Canadian citizens applying 
for admission to the United States, except when one of the following 
exceptions applies:
    (1) NEXUS program. A Canadian citizen who is traveling as a 
participant in the NEXUS program, and who is not otherwise required to 
present a passport and visa as provided in paragraphs (k) and (m) of 
this section and 8 CFR 212.1, may present a valid NEXUS program card 
when using a NEXUS Air kiosk or when entering the United States from 
contiguous territory or adjacent islands at a land or sea port-of-entry. 
A Canadian citizen who enters the United States by pleasure vessel from 
Canada under the remote inspection system may present a NEXUS program 
card.
    (2) FAST program. A Canadian citizen who is traveling as a 
participant in the FAST program, and who is not otherwise required to 
present a passport and visa as provided in paragraphs (k) and (m) of 
this section and 8 CFR 212.1, may present a valid FAST card at a land or 
sea port-of-entry prior to entering the United States from contiguous 
territory or adjacent islands.
    (3) SENTRI program. A Canadian citizen who is traveling as a 
participant in the SENTRI program, and who is not otherwise required to 
present a passport and visa as provided in paragraphs (k) and (m) of 
this section and 8 CFR 212.1, may present a valid SENTRI card at a land 
or sea port-of-entry prior to entering the United States from contiguous 
territory or adjacent islands.
    (4) Canadian Indians. If designated by the Secretary of Homeland 
Security, a Canadian citizen holder of an Indian and Northern Affairs 
Canada (``INAC'') card issued by the Canadian Department of Indian 
Affairs and North Development, Director of Land and Trust Services (LTS) 
in conformance with security standards agreed upon by the Governments of 
Canada and the United States, and containing a machine readable zone, 
and who is arriving from Canada, may present the card prior to entering 
the United States at a land port-of-entry.
    (5) Children. A child who is a Canadian citizen who is seeking 
admission to the United States when arriving from contiguous territory 
at a sea or land port-of-entry, may present certain other documents if 
the arrival meets the requirements described in either paragraph (i) or 
(ii) of this section.
    (i) Children under age 16. A Canadian citizen who is under the age 
of 16 is permitted to present an original or a copy of his or her birth 
certificate, a Canadian Citizenship Card, or a Canadian Naturalization 
Certificate when arriving in the United States from contiguous territory 
at land or sea ports-of-entry.
    (ii) Groups of children under age 19. A Canadian citizen who is 
under age 19 and who is traveling with a public or

[[Page 151]]

private school group, religious group, social or cultural organization, 
or team associated with a youth sport organization may present an 
original or a copy of his or her birth certificate, a Canadian 
Citizenship Card, or a Canadian Naturalization Certificate when applying 
for admission to the United States from contiguous territory at all land 
and sea ports-of-entry, when the group, organization or team is under 
the supervision of an adult affiliated with the organization and when 
the child has parental or legal guardian consent to travel. For purposes 
of this paragraph, an adult is considered to be a person who is age 19 
or older. The following requirements will apply:
    (A) The group, organization, or team must provide to CBP upon 
crossing the border, on organizational letterhead:
    (1) The name of the group, organization or team, and the name of the 
supervising adult;
    (2) A trip itinerary, including the stated purpose of the trip, the 
location of the destination, and the length of stay;
    (3) A list of the children on the trip;
    (4) For each child, the primary address, primary phone number, date 
of birth, place of birth, and the name of at least one parent or legal 
guardian.
    (B) The adult leading the group, organization, or team must 
demonstrate parental or legal guardian consent by certifying in the 
writing submitted in paragraph (a)(5)(ii)(A) of this section that he or 
she has obtained for each child the consent of at least one parent or 
legal guardian.
    (C) The procedure described in this paragraph is limited to members 
of the group, organization, or team that are under age 19. Other members 
of the group, organization, or team must comply with other applicable 
document and/or inspection requirements found in this part and 8 CFR 
parts 212 and 235.
    (6) Enhanced driver's license programs. Upon the designation by the 
Secretary of Homeland Security of an enhanced driver's license as an 
acceptable document to denote identity and citizenship for purposes of 
entering the United States, Canadian citizens may be permitted to 
present these documents in lieu of a passport when seeking admission to 
the United States according to the terms of the agreements entered 
between the Secretary of Homeland Security and the entity. The Secretary 
of Homeland Security will announce, by publication of a notice in the 
Federal Register, documents designated under this paragraph. A list of 
the documents designated under this paragraph will also be made 
available to the public.
    (b) Citizens of the British Overseas Territory of Bermuda. A visa is 
not required, except for Citizens of the British Overseas Territory of 
Bermuda who apply for admission in E, K, V, or S nonimmigrant visa 
classification as provided in paragraphs (k) and (m) of this section and 
8 CFR 212.1. A passport is required for Citizens of the British Overseas 
Territory of Bermuda applying for admission to the United States.
    (c) Bahamian nationals and British subjects resident in the Bahamas. 
A passport is required. A visa is not required if, prior to the 
embarkation of such an alien for the United States on a vessel or 
aircraft, the examining U.S. immigration officer at Freeport or Nassau 
determines that the individual is clearly and beyond a doubt entitled to 
admission.
    (d) British subjects resident in the Cayman Islands or in the Turks 
and Caicos Islands. A passport is required. A visa is not required if 
the alien arrives directly from the Cayman Islands or the Turks and 
Caicos Islands and presents a current certificate from the Clerk of 
Court of the Cayman Islands or the Turks and Caicos Islands indicating 
no criminal record.
    (e) British, French, and Netherlands nationals and nationals of 
certain adjacent islands of the Caribbean which are independent 
countries. 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:
    (1) Is proceeding to the United States as an agricultural worker; or
    (2) Is the beneficiary of a valid, unexpired, indefinite 
certification granted

[[Page 152]]

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.
    (f) Nationals and residents of the British Virgin Islands. (1) A 
national of the British Virgin Islands and resident therein requires a 
passport but not a visa if proceeding to the United States Virgin 
Islands.
    (2) A national of the British Virgin Islands and resident therein 
requires a passport but does not require a visa to apply for entry into 
the United States if such applicant:
    (i) Is proceeding by aircraft directly from St. Thomas, U.S. Virgin 
Islands;
    (ii) Is traveling to some other part of the United States solely for 
the purpose of business or pleasure as described in INA 101(a)(15)(B);
    (iii) Satisfies the examining U.S. Immigration officer at that port 
of entry that he or she is admissible in all respects other than the 
absence of a visa; and
    (iv) Presents a current Certificate of Good Conduct issued by the 
Royal Virgin Islands Police Department indicating that he or she has no 
criminal record.
    (g) Mexican nationals. (1) A visa and a passport are not required of 
a Mexican national who is applying for admission from Mexico as a 
temporary visitor for business or pleasure at a land port-of-entry, or 
arriving by pleasure vessel or ferry, if the national is in possession 
of a Form DSP-150, B-1/B-2 Visa and Border Crossing Card, containing a 
machine-readable biometric identifier, issued by the Department of 
State.
    (2) A visa and a passport are not required of a Mexican national who 
is applying for admission from contiguous territory or adjacent islands 
at a land or sea port-of-entry, if the national is a member of the Texas 
Band of Kickapoo Indians or Kickapoo Tribe of Oklahoma who is in 
possession of a Form I-872 American Indian Card issued by U.S. 
Citizenship and Immigration Services (USCIS).
    (3) A visa is not required of a Mexican national employed as a crew 
member on an aircraft belonging to a Mexican company authorized to 
engage in commercial transportation into the United States.
    (4) A visa is not required of a Mexican national bearing a Mexican 
diplomatic or official passport who is a military or civilian official 
of the Federal Government of Mexico entering the United States for a 
stay of up to 6 months for any purpose other than on assignment as a 
permanent employee to an office of the Mexican Federal Government in the 
United States. A visa is also not required of the official's spouse or 
any of the official's dependent family members under 19 years of age who 
hold diplomatic or official passports and are in the actual company of 
the official at the time of entry. This waiver does not apply to the 
spouse or any of the official's family members classifiable under INA 
101(a)(15) (F) or (M).
    (h) Natives and residents of the Trust Territory of the Pacific 
Islands. A visa and a passport are not required of a native and resident 
of the Trust Territory of the Pacific Islands who has proceeded in 
direct and continuous transit from the Trust Territory to the United 
States.
    (i) [Reserved]
    (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.
    (k) Fiance(e) of a U.S. citizen. Notwithstanding the provisions of 
paragraphs (a) through (h) of this section, a

[[Page 153]]

visa is required of an alien described in such paragraphs who is 
classified, or who seeks classification, under INA 101(a)(15)(K).
    (l) Visa waiver program. (1) A visa is not required of any person 
who seeks admission to the United States for a period of 90 days or less 
as a visitor for business or pleasure and who is eligible to apply for 
admission to the United States as a Visa Waiver Program applicant. (For 
the list of countries whose nationals are eligible to apply for 
admission to the United States as Visa Waiver Program applicants, see 8 
CFR 217.2(a)).
    (2) An alien denied admission under the Visa Waiver Program by 
virtue of a ground of inadmissibility described in INA section 212(a) 
that is discovered at the time of the alien's application for admission 
at a port of entry or through use of an automated electronic database 
may apply for a visa as the only means of challenging such a 
determination. A consular officer must accept and adjudicate any such 
application if the alien otherwise fulfills all of the application 
requirements contained in Part 41, Sec. 41.2(l)(1).
    (m) Treaty Trader and Treaty Investor. Notwithstanding the 
provisions of paragraph (a) of this section, a visa is required of a 
Canadian national who is classified, or who seeks classification, under 
INA 101(a)(15)(E).

[52 FR 42597, Nov. 5, 1987]

    Editorial Note: For Federal Register citations affecting Sec. 41.2, 
see the List of CFR Sections Affected, which appears in the Finding Aids 
section of the printed volume and on GPO Access.



Sec. 41.3  Waiver by joint action of consular and immigration officers of 

passport and/or visa requirements.

    Under the authority of INA 212(d)(4), the documentary requirements 
of INA 212(a)(7)(B)(i)(I), (i)(II) may be waived for any alien in whose 
case the consular officer serving the port or place of embarkation is 
satisfied after consultation with, and concurrence by, the appropriate 
immigration officer, that the case falls within any of the following 
categories:
    (a) Residents of foreign contiguous territory; visa and passport 
waiver. An alien residing in foreign contiguous territory who does not 
qualify for any waiver provided in Sec. 41.1 and is a member of a 
visiting group or excursion proceeding to the United States under 
circumstances which make it impractical to procure a passport and visa 
in a timely manner.
    (b) Aliens for whom passport extension facilities are unavailable; 
passport waiver. As alien whose passport is not valid for the period 
prescribed in INA 212(a)(7)(B)(i)(I) and who is embarking for the United 
States at a port or place remote from any establishment at which the 
passport could be revalidated.
    (c) Aliens precluded from obtaining passport extensions by foreign 
government restrictions; passport waiver. An alien whose passport is not 
valid for the period prescribed in INA 212(a)(7)(B)(i)(I) and whose 
government, as a matter of policy, does not revalidate passports more 
than 6 months prior to expiration or until the passport expires.
    (d) Emergent circumstances; visa waiver. An alien well and favorably 
known at the consular office, who was previously issued a nonimmigrant 
visa which has expired, and who is proceeding directly to the United 
States under emergent circumstances which preclude the timely issuance 
of a visa.
    (e) Members of armed forces of foreign countries; visa and passport 
waiver. 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.
    (f) Landed immigrants in Canada; passport waiver. An alien applying 
for a visa at a consular office in Canada:
    (1) Who is a landed immigrant in Canada;
    (2) Whose port and date of expected arrival in the United States are 
known; and
    (3) Who is proceeding to the United States under emergent 
circumstances

[[Page 154]]

which preclude the timely procurement of a passport or Canadian 
certificate of identity.
    (g) Authorization to individual consular office; visa and/or 
passport waiver. An alien within the district of a consular office which 
has been authorized by the Department, because of unusual circumstances 
prevailing in that district, to join with immigration officers abroad in 
waivers of documentary requirements in specific categories of cases, and 
whose case falls within one of those categories.

[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]



                Subpart B_Classification of Nonimmigrants



Sec. 41.11  Entitlement to nonimmigrant status.

    (a) Presumption of immigrant status and burden of proof. An 
applicant for a nonimmigrant visa, other than an alien applying for a 
visa under INA 101(a)(15) (H)(i) or (L), shall be presumed to be an 
immigrant until the consular officer is satisfied that the alien is 
entitled to a nonimmigrant status described in INA 101(a)(15) or 
otherwise established by law or treaty. The burden of proof is upon the 
applicant to establish entitlement for nonimmigrant status and the type 
of nonimmigrant visa for which application is made.
    (b) Aliens unable to establish nonimmigrant status. (1) A 
nonimmigrant visa shall not be issued to an alien who has failed to 
overcome the presumption of immigrant status established by INA 214(b).
    (2) In a borderline case in which an alien appears to be otherwise 
entitled to receive a visa under INA 101(a)(15)(B) or (F) but the 
consular officer concludes that the maintenance of the alien's status or 
the departure of the alien from the United States as required is not 
fully assured, a visa may nevertheless be issued upon the posting of a 
bond with the Secretary of Homeland Security under terms and conditions 
prescribed by the consular officer.

[52 FR 42597, Nov. 5, 1987, as amended at 61 FR 1835, Jan. 24, 1996]



Sec. 41.12  Classification symbols.

    A visa issued to a nonimmigrant alien within one of the classes 
described in this section shall bear an appropriate visa symbol to show 
the classification of the alien. The symbol shall be inserted in the 
space provided on the visa. The following visa symbols shall be used:

                              Nonimmigrants
------------------------------------------------------------------------
          Symbol                     Class              Section of law
------------------------------------------------------------------------
A1.......................  Ambassador, Public        101(a)(15)(A)(i).
                            Minister, Career
                            Diplomat or Consular
                            Officer, or Immediate
                            Family.
A2.......................  Other Foreign Government  101(a)(15)(A)(ii).
                            Official or Employee,
                            or Immediate Family.
A3.......................  Attendant, Servant, or    101(a)(15)(A)(iii).
                            Personal Employee of A1
                            or A2, or Immediate
                            Family.
B1.......................  Temporary Visitor for     101(a)(15)(B).
                            Business.
B2.......................  Temporary Visitor for     101(a)(15)(B).
                            Pleasure.
B1/B2....................  Temporary Visitor for     101(a)(15)(B).
                            Business & Pleasure.
C1.......................  Alien in Transit........  101(a)(15)(C).
C1/D.....................  Combined Transit and      101(a)(15)(C) and
                            Crewmember Visa.          (D).
C2.......................  Alien in Transit to       101(a)(15)(C).
                            United Nations
                            Headquarters District
                            Under Sec. 11.(3), (4),
                            or (5) of the
                            Headquarters Agreement.
C3.......................  Foreign Government        212(d)(8).
                            Official, Immediate
                            Family, Attendant,
                            Servant or Personal
                            Employee, in Transit.
CW1......................  Commonwealth of Northern  Section 6(d) of
                            Mariana Islands           Pub. L. 94-241, as
                            Transitional Worker.      added by sec.
                                                      702(a) of Pub. L.
                                                      110-229.
CW2......................  Spouse or Child of CW1..  Section 6(d) of
                                                      Pub. L. 94-241, as
                                                      added by sec.
                                                      702(a) of Pub. L.
                                                      110-229.
D........................  Crewmember (Sea or Air).  101(a)(15)(D).
E1.......................  Treaty Trader, Spouse or  101(a)(15)(E)(i).
                            Child.

[[Page 155]]

 
E2.......................  Treaty Investor, Spouse   101(a)(15)(E)(ii).
                            or Child.
E2C......................  Commonwealth of Northern  Section 6(c) of
                            Mariana Islands           Pub. L. 94-241, as
                            Investor, Spouse or       added by sec.
                            Child.                    702(a) of Pub. L.
                                                      110-229.
E3.......................  Australian Treaty Alien   101(a)(15)(E)(iii).
                            coming to the United
                            States Solely to
                            Perform Services in a
                            Specialty Occupation.
E3D......................  Spouse or Child of E3...  101(a)(15)(E)(iii).
E3R......................  Returning E3............  101(a)(15)(E)(iii).
F1.......................  Student in an academic    101(a)(15)(F)(i).
                            or language training
                            program.
F2.......................  Spouse or Child of F1...  101(a)(15)(F)(ii).
F3.......................  Canadian or Mexican       101(a)(15)(F)(iii).
                            national commuter
                            student in an academic
                            or language training
                            program.
G1.......................  Principal Resident        101(a)(15)(G)(i).
                            Representative of
                            Recognized Foreign
                            Government to
                            International
                            Organization, Staff, or
                            Immediate Family.
G2.......................  Other Representative of   101(a)(15)(G)(ii).
                            Recognized Foreign
                            Member Government to
                            International
                            Organization, or
                            Immediate Family.
G3.......................  Representative of         101(a)(15)(G)(iii).
                            Nonrecognized or
                            Nonmember Foreign
                            Government to
                            International
                            Organization, or
                            Immediate Family.
G4.......................  International             101(a)(15)(G)(iv).
                            Organization Officer or
                            Employee, or Immediate
                            Family.
G5.......................  Attendant, Servant, or    101(a)(15)(G)(v).
                            Personal Employee of G1
                            through G4, or
                            Immediate Family.
H1B......................  Alien in a Specialty      101(a)(15)(H)(i)(b)
                            Occupation (Profession).  .
H1B1.....................  Chilean or Singaporean    101(a)(15)(H)(i)(b1
                            National to Work in a     ).
                            Specialty Occupation.
H1C......................  Nurse in health           101(a)(15)(H)(i)(c)
                            professional shortage     .
                            area.
H2A......................  Temporary Worker          101(a)(15)(H)(ii)(a
                            Performing Agricultural   ).
                            Services Unavailable in
                            the United States.
H2B......................  Temporary Worker          101(a)(15)(H)(ii)(b
                            Performing Other          ).
                            Services Unavailable in
                            the United States.
H3.......................  Trainee.................  101(a)(15)(H)(iii).
H4.......................  Spouse or Child of Alien  101(a)(15)(H)(iv).
                            Classified H1B/B1/C,
                            H2A/B, or H-3.
I........................  Representative of         101(a)(15)(I).
                            Foreign Information
                            Media, Spouse and Child.
J1.......................  Exchange Visitor........  101(a)(15)(J).
J2.......................  Spouse or Child of J1...  101(a)(15)(J).
K1.......................  Fiance(e) of United       101(a)(15)(K)(i).
                            States Citizen.
K2.......................  Child of Fiance(e) of     101(a)(15)(K)(iii).
                            U.S. Citizen.
K3.......................  Spouse of U.S. citizen    101(a)(15)(K)(ii).
                            awaiting availability
                            of immigrant visa.
K4.......................  Child of K3.............  101(a)(15)(K)(iii).
L1.......................  Intracompany Transferee   101(a)(15)(L).
                            (Executive, Managerial,
                            and Specialized
                            Knowledge Personnel
                            Continuing Employment
                            with International Firm
                            or Corporation).
L2.......................  Spouse or Child of        101(a)(15)(L).
                            Intracompany Transferee.
M1.......................  Vocational Student or     101(a)(15)(M)(i).
                            Other Nonacademic
                            Student.
M2.......................  Spouse or Child of M1...  101(a)(15)(M)(ii).
M3.......................  Canadian or Mexican       101(a)(15)(M)(iii).
                            national commuter
                            student (Vocational
                            student or other
                            nonacademic student).
N8.......................  Parent of an Alien        101(a)(15)(N)(i).
                            Classified SK3 or SN3.
N9.......................  Child of N8 or of SK1,    101(a)(15)(N)(ii).
                            SK2, SK4, SN1, SN2 or
                            SN4.
NATO 1...................  Principal Permanent       Art. 12, 5 UST
                            Representative of         1094; Art. 20, 5
                            Member State to NATO      UST 1098.
                            (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.
NATO 2...................  Other Representative of   Art. 13, 5 UST
                            member state to NATO      1094; Art. 1, 4
                            (including any of its     UST 1794; Art. 3,
                            Subsidiary Bodies)        4 UST 1796.
                            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.
NATO 3...................  Official Clerical Staff   Art. 14, 5 UST
                            Accompanying              1096.
                            Representative of
                            Member State to NATO
                            (including any of its
                            Subsidiary Bodies), or
                            Immediate Family.
NATO 4...................  Official of NATO (Other   Art. 18, 5 UST
                            Than Those Classifiable   1098.
                            as NATO1), or Immediate
                            Family.
NATO 5...................  Experts, Other Than NATO  Art. 21, 5 UST
                            Officials Classifiable    1100.
                            Under NATO4, Employed
                            in Missions on Behalf
                            of NATO, and their
                            Dependents.

[[Page 156]]

 
NATO 6...................  Member of a Civilian      Art. 1, 4 UST 1794;
                            Component Accompanying    Art. 3, 5 UST 877.
                            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.
NATO 7...................  Attendant, Servant, or    Arts. 12-20, 5 UST
                            Personal Employee of      1094-1098.
                            NATO1, NATO2, NATO 3,
                            NATO4, NATO5, and NATO6
                            Classes, or Immediate
                            Family.
O1.......................  Alien with Extraordinary  101(a)(15)(O)(i).
                            Ability in Sciences,
                            Arts, Education,
                            Business or Athletics.
O2.......................  Alien Accompanying and    101(a)(15)(O)(ii).
                            Assisting in the
                            Artistic or Athletic
                            Performance by O1.
O3.......................  Spouse or Child of O1 or  101(a)(15)(O)(iii).
                            O2.
P1.......................  Internationally           101(a)(15)(P)(i).
                            Recognized Athlete or
                            Member of
                            Internationally
                            Recognized
                            Entertainment Group.
P2.......................  Artist or Entertainer in  101(a)(15)(P)(ii).
                            a Reciprocal Exchange
                            Program.
P3.......................  Artist or Entertainer in  101(a)(15)(P)(iii).
                            a Culturally Unique
                            Program.
P4.......................  Spouse or Child of P1,    101(a)(15)(P)(iv).
                            P2, or P3.
Q1.......................  Participant in an         101(a)(15)(Q)(i).
                            International Cultural
                            Exchange Program.
R1.......................  Alien in a Religious      101(a)(15)(R).
                            Occupation.
R2.......................  Spouse or Child of R1...  101(a)(15)(R).
S5.......................  Certain Aliens Supplying  101(a)(15)(S)(i).
                            Critical Information
                            Relating to a Criminal
                            Organization or
                            Enterprise.
S6.......................  Certain Aliens Supplying  101(a)(15)(S)(ii).
                            Critical Information
                            Relating to Terrorism.
S7.......................  Qualified Family Member   101(a)(15)(S).
                            of S5 or S6.
T1.......................  Victim of a severe form   101(a)(15)(T)(i).
                            of trafficking in
                            persons.
T2.......................  Spouse of T1............  101(a)(15)(T)(ii).
T3.......................  Child of T1.............  101(a)(15)(T)(ii).
T4.......................  Parent of T1............  101(a)(15)(T)(ii).
T5.......................  Unmarried Sibling under   101(a)(15)(T)(ii)
                            age 18 of T1.             as amended by sec.
                                                      201(a) of Pub. L.
                                                      110-457.
TN.......................  NAFTA Professional......  214(e)(2).
TD.......................  Spouse or Child of NAFTA  214(e)(2).
                            Professional.
U1.......................  Victim of criminal        101(a)(15)(U)(i).
                            activity.
U2.......................  Spouse of U1............  101(a)(15)(U)(ii).
U3.......................  Child of U1.............  101(a)(15)(U)(ii).
U4.......................  Parent of U1 under 21     101(a)(15)(U)(ii).
                            years of age.
U5.......................  Unmarried Sibling under   101(a)(15)(U)(ii).
                            age 18 of U1 under 21
                            years of age.
V1.......................  Spouse of a Lawful        101(a)(15)(V)(i) or
                            Permanent Resident        101(a)(15)(V)(ii).
                            Alien Awaiting
                            Availability of
                            Immigrant Visa.
V2.......................  Child of a Lawful         101(a)(15)(V)(i) or
                            Permanent Resident        101(a)(15)(V)(ii).
                            Alien Awaiting
                            Availability of
                            Immigrant Visa.
V3.......................  Child of a V1 or V2.....  203(d) &
                                                      101(a)(15)(V)(i)
                                                      or
                                                      101(a)(15)(V)(ii).
------------------------------------------------------------------------


[74 FR 61519, Nov. 25, 2009]



                 Subpart C_Foreign Government Officials



Sec. 41.21  Foreign Officials--General.

    (a) Definitions. In addition to pertinent INA definitions, the 
following definitions are applicable:
    (1) Accredited, as used in INA 101(a)(15)(A), 101(a)(15)(G), and 
212(d)(8), means an alien holding an official position, other than an 
honorary official position, with a government or international 
organization and possessing a travel document or other evidence of 
intention to enter or transit the United States to transact official 
business for that government or international organization.
    (2) Attendants, as used in INA 101(a)(15)(A)(iii), 101(a)(15)(G)(v), 
and 212(d)(8), and in the definition of the NATO-7 visa symbol, means 
aliens paid from the public funds of a foreign government or from the 
funds of an international organization, accompanying or following to 
join the principal alien to whom a duty or service is owed.
    (3) Immediate family, as used in INA 101(a)(15)(A), 101(a)(15)(G), 
and 212(d)(8), and in classification under the NATO-

[[Page 157]]

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. Under the INA 101(a)(15)(A) and 101(a)(15)(G) visa 
classifications, ``immediate family'' also includes individuals who:
    (i) Are not members of some other household;
    (ii) Will reside regularly in the household of the principal alien;
    (iii) Are recognized as immediate family members of the principal 
alien by the sending Government as demonstrated by eligibility for 
rights and benefits, such as the issuance of a diplomatic or official 
passport, or travel or other allowances; and
    (iv) Are individually authorized by the Department.
    (4) Servants and personal employees, as used in INA 
101(a)(15)(A)(iii), 101(a)(15)(G)(v), and 212(d)(8), and in 
classification under the NATO-7 visa symbol, means aliens employed in a 
domestic or personal capacity by a principal alien, who are paid from 
the private funds of the principal alien and seek to enter the United 
States solely for the purpose of such employment.
    (b) Exception to passport validity requirement for aliens in certain 
A, G, and NATO classes. A nonimmigrant alien for whom the passport 
requirement of INA 212(a)(7)(B)(i)(I) has not been waived and who is 
within one of the classes:
    (1) Described in INA 101(a)(15)(A)(i) and (ii); or
    (2) Described in INA 101(a)(15)(G)(i), (ii), (iii), and (iv); or
    (3) NATO-1, NATO-2, NATO-3, NATO-4, or NATO-6 may present a passport 
which is valid only for a sufficient period to enable the alien to apply 
for admission at a port of entry prior to its expiration.
    (c) Exception to passport validity requirement for foreign 
government officials in transit. An alien classified C-3 under INA 
212(d)(8) needs to present only a valid unexpired visa and a travel 
document which is valid for entry into a foreign country for at least 30 
days from the date of application for admission into the United States.
    (d) Grounds for refusal of visas applicable to certain A, C, G, and 
NATO classes. (1) An A-1 or A-2 visa may not be issued to an alien the 
Department has determined to be persona non grata.
    (2) Only the provisions of INA 212(a) cited below apply to the 
indicated classes of nonimmigrant visa applicants:
    (i) Class A-1: INA 212(a) (3)(A), (3)(B), and (3)(C);
    (ii) Class A-2: INA 212(a) (3)(A), (3)(B), and (3)(C);
    (iii) Classes C-2 and C-3: INA 212(a) (3)(A), (3)(B), (3)(C), and 
(7)(B);
    (iv) Classes G-1, G-2, G-3, and G-4: INA 212(a) (3)(A), (3)(B), and 
(3)(C);
    (v) Classes NATO-1, NATO-2, NATO-3, NATO-4, and NATO-6: INA 212(a) 
(3)(A), (3)(B), and (3)(C);
    (3) An alien within class A-3 or G-5 is subject to all grounds of 
refusal specified in INA 212 which are applicable to nonimmigrants in 
general.
    (4) Notwithstanding the 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:
    (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;
    (ii) To permit the United States to comply with the United Nations 
Headquarters Agreement and other applicable international agreements.

[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; 74 FR 36113, July 
22, 2009]



Sec. 41.22  Officials of foreign governments.

    (a) Criteria for classification of foreign government officials. (1) 
An alien is classifiable A-1 or A-2 under INA 101(a)(15)(A) (i) or (ii) 
if the principal alien:
    (i) Has been accredited by a foreign government recognized de jure 
by the United States;

[[Page 158]]

    (ii) Intends to engage solely in official activities for that 
foreign government while in the United States; and
    (iii) Has been accepted by the President, the Secretary of State, or 
a consular officer acting on behalf of the Secretary of State.
    (2) A member of the immediate family of a principal alien is 
classifiable A-1 or A-2 under INA 101(a)(15)(A) (i) or (ii) if the 
principal alien is so classified.
    (b) Classification under INA 101(a)(15)(A). An alien entitled to 
classification under INA 101(a)(15)(A) shall be classified under this 
section even if eligible for another nonimmigrant classification.
    (c) Classification of attendants, servants, and personal employees. 
An alien is classifiable as a nonimmigrant under INA 101(a)(15)(A)(iii) 
if the consular officer is satisfied that the alien qualifies under 
those provisions.
    (d) Referral to the Department of special cases concerning principal 
alien applicants. In any case in which there is uncertainty about the 
applicability of these regulations to a principal alien applicant 
requesting such nonimmigrant status, the matter shall be immediately 
referred to the Department for consideration as to whether acceptance of 
accreditation will be granted.
    (e) Change of classification to that of a foreign government 
official. In the case of an alien in the United States seeking a change 
of nonimmigrant classification under INA 248 to a classification under 
INA 101(a)(15)(A) (i) or (ii), the question of acceptance of 
accreditation is determined by the Department.
    (f) Termination of status. The Department may, in its discretion, 
cease to recognize as entitled to classification under INA 101(a)(15)(A) 
(i) or (ii) any alien who has nonimmigrant status under that provision.
    (g) Classification of foreign government official. A foreign 
government official or employee seeking to enter the United States 
temporarily other than as a representative or employee of a foreign 
government is not classifiable under the provisions of INA 
101(a)(15)(A).
    (h) Courier and acting courier on official business--(1) Courier of 
career. An alien regularly and professionally employed as a courier by 
the government of the country to which the alien owes allegiance is 
classifiable as a nonimmigrant under INA 101(a)(15)(A)(i), if the alien 
is proceeding to the United States on official business for that 
government.
    (2) Official acting as courier. An alien not regularly and 
professionally employed as a courier by the government of the country to 
which the alien owes allegiance is classifiable as a nonimmigrant under 
INA 101(a)(15)(A)(ii), if the alien is holding an official position and 
is proceeding to the United States as a courier on official business for 
that government.
    (3) Nonofficial serving as courier. An alien serving as a courier 
but not regularly and professionally employed as such who holds no 
official position with, or is not a national of, the country whose 
government the alien is serving, shall be classified as a nonimmigrant 
under INA 101(a)(15)(B).
    (i) Official of foreign government not recognized by the United 
States. An official of a foreign government not recognized de jure by 
the United States, who is proceeding to or through the United States on 
an official mission or to an international organization shall be 
classified as a nonimmigrant under INA 101(a)(15) (B), (C), or (G)(iii).



Sec. 41.23  Accredited officials in transit.

    An accredited official of a foreign government intending to proceed 
in immediate and continuous transit through the United States on 
official business for that government is entitled to the benefits of INA 
212(d)(8) if that government grants similar privileges to officials of 
the United States, and is classifiable C-3 under the provisions of INA 
101(a)(15)(C). Members of the immediate family, attendants, servants, or 
personal employees of such an official receive the same classification 
as the principal alien.



Sec. 41.24  International organization aliens.

    (a) Definition of international organization. ``International 
organization'' means:

[[Page 159]]

    (1) Any public international organization which has been designated 
by the President by Executive Order as entitled to enjoy the privileges, 
exemptions, and immunities provided for in the International 
Organizations Immunities Act (59 Stat. 669, 22 U.S.C. 288); and
    (2) For the purpose of special immigrant status under INA 
101(a)(27)(I), INTELSAT or any successor or separated entity thereof.
    (b) Aliens coming to international organizations. (1) An alien is 
classifiable under INA 101(a)(15)(G) if the consular officer is 
satisfied that the alien is within one of the classes described in that 
section and seeks to enter or transit the United States in pursuance of 
official duties. If the purpose of the entry or transit is other than 
pursuance of official duties, the alien is not classifiable under INA 
101(a)(15)(G).
    (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.
    (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.
    (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.
    (c) Officers and employees of privatized INTELSAT, their family 
members and domestic servants. (1) Officers and employees of privatized 
INTELSAT who both were employed by INTELSAT, and held status under INA 
101(a)(15)(G)(iv) for at least six months prior to privatization on July 
17, 2001, will continue to be so classifiable for so long as they are 
officers or employees of INTELSAT or a successor or separated entity 
thereof.
    (2) Aliens who had had G-4 status as officers and employees of 
INTELSAT but became officers or employees of a successor or separated 
entity of INTELSAT after at least six months of such employment, but 
prior to and in anticipation of privatization and subsequent to March 
17, 2000, will also continue to be classifiable under INA 
101(a)(15)(G)(iv) for so long as that employment continues.
    (3) Family members of officers and employees described in paragraphs 
(c)(1) and (2) of this section who qualify as ``immediate family'' under 
Sec. 41.21(a)(3) and who are accompanying or following to join the 
principal are also classifiable under INA 1010(a)(15)(G)(iv) for so long 
as the principal is so classified.
    (4) Attendants, servants, and personal employees of officers and 
employees described in paragraphs (c)(1) and (2) of this section are not 
eligible for classification under INA 101(a)(15)(G)(v), given that the 
officers and employees described in paragraphs (c)(1) and (2) of this 
section are not officers or employees of an ``international 
organization'' for purposes of INA 101(a)(15)(G).

[52 FR 42597, Nov. 5, 1987, as amended at 67 FR 1414, Jan. 11, 2002; 67 
FR 18822, Apr. 17, 2002]



Sec. 41.25  NATO representatives, officials, and employees.

    (a) Classification. An alien shall be classified under the symbol 
NATO-1, NATO-2, NATO-3, NATO-4, or NATO-5 if the consular officer is 
satisfied that the alien is seeking admission to the United States under 
the applicable provision of the Agreement on the Status of the North 
Atlantic Treaty Organization, National Representatives and International 
Staff, or is a member of the immediate family of an alien classified 
NATO-1 through NATO-5. (See Sec. 41.12 for classes of aliens entitled 
to classification under each symbol.)
    (b) Armed services personnel. Armed services personnel entering the 
United States in accordance with the provisions of the Agreement Between 
the Parties to the North Atlantic Treaty Regarding the Status of Their 
Forces or in accordance with the provisions of the Protocol on the 
Status of International Military Headquarters Set Up Pursuant to the 
North Atlantic Treaty may enter the United States under the

[[Page 160]]

appropriate treaty waiver of documentary requirements contained in Sec. 
41.1 (d) or (e). If a visa is issued it is classifiable under the NATO-2 
symbol.
    (c) Dependents of armed services personnel. Dependents of armed 
services personnel referred to in paragraph (b) of this section shall be 
classified under the symbol NATO-2.
    (d) Members of civilian components and dependents. Alien members of 
a civilian component accompanying a force entering in accordance with 
the provisions of the NATO Status-of-Forces Agreement, and dependents, 
or alien members of a civilian component attached to or employed by an 
Allied Headquarters under the Protocol on the Status of International 
Military Headquarters, and dependents shall be classified under the 
symbol NATO-6.
    (e) Attendant, servant, or personal employee of an alien classified 
NATO-1 through NATO-6. An alien attendant, servant, or personal employee 
of an alien classified NATO-1 through NATO-6, and any member of the 
immediate family of such attendant, servant, or personal employee, shall 
be classified under the symbol NATO-7.



Sec. 41.26  Diplomatic visas.

    (a) Definitions. (1) Diplomatic passport means a national passport 
bearing that title and issued by a competent authority of a foreign 
government.
    (2) Diplomatic visa means any nonimmigrant visa, regardless of 
classification, which bears that title and is issued in accordance with 
the regulations of this section.
    (3) Equivalent of a diplomatic passport means a 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.
    (b) Place of application. With the exception of certain aliens in 
the United States issued nonimmigrant visas by the Department under the 
provisions of Sec. 41.111(b), application for a diplomatic visa shall 
be made at a diplomatic mission or at a consular office authorized to 
issue diplomatic visas, regardless of the nationality or residence of 
the applicant.
    (c) Classes of aliens eligible to receive diplomatic visas. (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 
Sec. 41.12 if within one of the following categories:
    (i) Heads of states and their alternates;
    (ii) Members of a reigning royal family;
    (iii) Governors-general, governors, high commissioners, and similar 
high administrative or executive officers of a territorial unit, and 
their alternates;
    (iv) Cabinet ministers and their assistants holding executive or 
administrative positions not inferior to that of the head of a 
departmental division, and their alternates;
    (v) Presiding officers of chambers of national legislative bodies;
    (vi) Justices of the highest national court of a foreign country;
    (vii) Ambassadors, public ministers, other officers of the 
diplomatic service and consular officers of career;
    (viii) Military officers holding a rank not inferior to that of a 
brigadier general in the United States Army or Air Force and Naval 
officers holding a rank not inferior to that of a rear admiral in the 
United States Navy;
    (ix) Military, naval, air and other attach[eacute] and assistant 
attach[eacute] assigned to a foreign diplomatic mission;
    (x) Officers of foreign-government delegations to international 
organizations so designated by Executive Order;
    (xi) Officers of foreign-government delegations to, and officers of, 
international bodies of an official nature, other than international 
organizations so designated by Executive Order;
    (xii) Officers of a diplomatic mission of a temporary character 
proceeding to or through the United States in the performance of their 
official duties;
    (xiii) Officers of foreign-government delegations proceeding to or 
from a specific international conference of an official nature;
    (xiv) Members of the immediate family of a principal alien who is 
within one of the classes described in paragraphs (c)(1)(i) to 
(c)(1)(xi) inclusive, of this section;

[[Page 161]]

    (xv) Members of the immediate family accompanying or following to 
join the principal alien who is within one of the classes described in 
paragraphs (c)(1)(xii) and (c)(1)(xiii) of this section;
    (xvi) Diplomatic couriers proceeding to or through the United States 
in the performance of their official duties.
    (2) Aliens Classifiable G-4, who are otherwise qualified, are 
eligible to receive a diplomatic visa if accompanying these officers:
    (i) The Secretary General of the United Nations;
    (ii) An Under Secretary General of the United Nations;
    (iii) An Assistant Secretary General of the United Nations;
    (iv) The Administrator or the Deputy Administrator of the United 
Nations Development Program;
    (v) An Assistant Administrator of the United Nations Development 
Program;
    (vi) The Executive Director of the:
    (A) United Nation's Children's Fund;
    (B) United Nations Institute for Training and Research;
    (C) United Nations Industrial Development Organization;
    (vii) The Executive Secretary of the:
    (A) United Nations Economic Commission for Africa;
    (B) United Nations Economic Commission for Asia and the Far East;
    (C) United Nations Economic Commission for Latin America;
    (D) United Nations Economic Commission for Europe;
    (viii) The Secretary General of the United Nations Conference on 
Trade and Development;
    (ix) The Director General of the Latin American Institute for 
Economic and Social Planning;
    (x) The United Nations High Commissioner for Refugees;
    (xi) The United Nations Commissioner for Technical Cooperation;
    (xii) The Commissioner General of the United Nations Relief and 
Works Agency for Palestine Refugees in the Near East;
    (xiii) The spouse or child of any nonimmigrant alien listed in 
paragraphs (c)(2)(i) through (c)(2)(xii) of this section.
    (3) Other individual aliens or classes of aliens are eligible to 
receive diplomatic visas upon authorization of the Department, the Chief 
of a U.S. Diplomatic Mission, the Deputy Chief of Mission, the Counselor 
for Consular Affairs or the principal officer of a consular post not 
under the jurisdiction of a diplomatic mission.

[52 FR 42597, Nov. 5, 1987; 53 FR 9111, Mar. 21, 1988]



Sec. 41.27  Official visas.

    (a) Definition. Official visa means any nonimmigrant visa, 
regardless of classification, which bears that title and is issued in 
accordance with these regulations.
    (b) Place of application. Official visas are ordinarily issued only 
when application is made in the consular district of the applicant's 
residence. When directed by the Department, or in the discretion of the 
consular officer, official visas may be issued when application is made 
in a consular district in which the alien is physically present but does 
not reside. Certain aliens in the United States may be issued official 
visas by the Department under the provisions of Sec. 41.111(b).
    (c) Classes of aliens eligible to receive official visas. (1) A 
nonimmigrant within one of the following categories who is not eligible 
to receive a diplomatic visa shall, if otherwise qualified, be eligible 
to receive an official visa irrespective of classification of the visa 
under Sec. 41.12:
    (i) Aliens within a class described in Sec. 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;
    (ii) Aliens classifiable under INA 101(a)(15)(A);
    (iii) Aliens, other than those described in Sec. 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 de jure by the United States;
    (iv) Aliens classifiable under INA 101(a)(15)(C) as nonimmigrants 
described in INA 212(d)(8);
    (v) Members and members-elect of national legislative bodies;
    (vi) Justices of the lesser national and the highest state courts of 
a foreign country;

[[Page 162]]

    (vii) Officers and employees of national legislative bodies 
proceeding to or through the United States in the performance of their 
official duties;
    (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;
    (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;
    (x) Clerical and custodial employees attached to foreign-government 
delegations proceeding to or from a specific international conference of 
an official nature;
    (xi) Officers and employees of foreign governments recognized de 
jure by the United States who are stationed in foreign contiguous 
territories or adjacent islands;
    (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;
    (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 Sec. 41.26(c)(2).
    (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.

[52 FR 42597, Nov. 5, 1987; 53 FR 9111, Mar. 21, 1988]



                      Subpart D_Temporary Visitors



Sec. 41.31  Temporary visitors for business or pleasure.

    (a) Classification. An alien is classifiable as a nonimmigrant 
visitor for business (B-1) or pleasure (B-2) if the consular officer is 
satisfied that the alien qualifies under the provisions of INA 
101(a)(15)(B), and that:
    (1) The alien intends to leave the United States at the end of the 
temporary stay (consular officers are authorized, if departure of the 
alien as required by law does not seem fully assured, to require the 
posting of a bond with the Secretary of Homeland Security in a 
sufficient sum to ensure that at the end of the temporary visit, or upon 
failure to maintain temporary visitor status, or any status subsequently 
acquired under INA 248, the alien will depart from the United States);
    (2) The alien has permission to enter a foreign country at the end 
of the temporary stay; and
    (3) Adequate financial arrangements have been made to enable the 
alien to carry out the purpose of the visit to and departure from the 
United States.
    (b) Definitions. (1) The term ``business,'' as used in INA 
101(a)(15)(B), refers to conventions, conferences, consultations and 
other legitimate activities of a commercial or professional nature. It 
does not include local employment or labor for hire. For the purposes of 
this section building or construction work, whether on-site or in plant, 
shall be deemed to constitute purely local employment or labor for hire; 
provided that the supervision or training of others engaged in building 
or construction work (but not the actual performance of any such 
building or construction work) shall not be deemed to constitute purely 
local employment or labor for hire if the alien is otherwise qualified 
as a B-1 nonimmigrant. An alien seeking to enter as a nonimmigrant for 
employment or labor pursuant to a contract or other prearrangement is 
required to qualify under the provisions of Sec. 41.53. An alien

[[Page 163]]

of distinguished merit and ability seeking to enter the United States 
temporarily with the idea of performing temporary services of an 
exceptional nature requiring such merit and ability, but having no 
contract or other prearranged employment, may be classified as a 
nonimmigrant temporary visitor for business.
    (2) The term pleasure, 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.

[52 FR 42597, Nov. 5, 1987; 53 FR 9172, Mar. 21, 1988]



Sec. 41.32  Nonresident alien Mexican border crossing identification cards; 

combined border crossing identification cards and B-1/B-2 visitor visas.

    (a) Combined B-1/B-2 visitor visa and border crossing identification 
card (B-1/B-2 Visa/BCC)--(1) Authorization for issuance. Consular 
officers assigned to a consular office in Mexico designated by the 
Deputy Assistant Secretary for Visa Services for such purpose may issue 
a border crossing identification card, as that term is defined in INA 
101(a)(6), in combination with a B-1/B-2 nonimmigrant visitor visa (B-1/
B-2 Visa/BCC), to a nonimmigrant alien who:
    (i) Is a citizen and resident of Mexico;
    (ii) Seeks to enter the United States as a temporary visitor for 
business or pleasure as defined in INA 101(a)(15)(B) for periods of stay 
not exceeding six months;
    (iii) Is otherwise eligible for a B-1 or a B-2 temporary visitor 
visa.
    (2) Procedure for application. Mexican applicants shall apply for a 
B-1/B-2 Visa/BCC at any U.S. consular office in Mexico designated by the 
Deputy Assistant Secretary of State for Visa Services pursuant to 
paragraph (a) of this section to accept such applications. The 
application shall be submitted electronically on Form DS-160 or, as 
directed by a consular officer, on Form DS-156. If submitted 
electronically, it must be signed electronically by clicking the box 
designated ``Sign Application'' in the certification section of the 
application.
    (3) Personal appearance. Each applicant shall appear in person 
before a consular officer to be interviewed regarding eligibility for a 
visitor visa, unless the consular officer waives personal appearance.
    (4) Issuance and format. A B-1/B-2 Visa/BCC issued on or after April 
1, 1998, shall consist of a card, Form DSP-150, containing a machine-
readable biometric identifier. It shall contain the following data:
    (i) Post symbol;
    (ii) Number of the card;
    (iii) Date of issuance;
    (iv) Indicia ``B-1/B-2 Visa and Border Crossing Card'';
    (v) Name, date of birth, and sex of the person to whom issued; and
    (vi) Date of expiration.
    (b) Validity. A BCC previously issued by a consular officer in 
Mexico on Form I-186, Nonresident Alien Mexican Border Crossing Card, or 
Form I-586, Nonresident Alien Border Crossing Card, is valid until the 
expiration date on the card (if any) unless previously revoked, but not 
later than the date, currently October 1, 2001, on which a machine-
readable, biometric identifier in the card is required in order for the 
card to be usable for entry. The BCC portion of a B-1/B-2 Visa/BCC 
issued to a Mexican national pursuant to provisions of this section 
contained in the 22 CFR, parts 1 to 299, edition revised as of April 1, 
1998 is valid until the date of expiration, unless previously revoked, 
but not later than the date, currently October 1, 2001, on which a 
machine-readable, biometric identifier in the card is required in order 
for the card to be usable for entry.
    (c) Revocation. A consular or immigration officer may revoke a BCC 
issued on Form I-186 or Form I-586, or a B-1/B-2 Visa/BCC under the 
provisions of Sec. 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

[[Page 164]]

of the card and physically cancel it under standard security conditions. 
If the revoked document is a stamp in a passport the consular or 
immigration officer shall write or stamp ``canceled'' on the face of the 
document.
    (d) Voidance. (1) The voiding pursuant to INA 222(g) of the visa 
portion of a B-1/B-2 Visa/BCC issued at any time by a consular officer 
in Mexico under provisions of this section contained in the 22 CFR, 
parts 1 to 299, edition revised as of April 1, 1998, also voids the BCC 
portion of that document.
    (2) A BCC issued at any time by a consular officer in Mexico under 
any provisions of this section contained in the 22 CFR, parts 1 to 299, 
edition revised as of April 1, 1998, is void if a consular or 
immigration officer determines that the alien has violated the 
conditions of the alien's admission into the United States, including 
the period of stay authorized by the Secretary of Homeland Security.
    (3) A consular or immigration officer shall immediately take 
possession of a card determined to be void under paragraphs (d) (1) or 
(2) of this section and physically cancel it under standard security 
conditions. If the document voided in paragraphs (d) (1) or (2) is in 
the form of a stamp in a passport the officer shall write or stamp 
``canceled'' across the face of the document.
    (e) Replacement. When a B-1/B-2 Visa/BCC issued under the provisions 
of this section, or a BCC or B-1/B-2 Visa/BCC issued under any 
provisions of this section contained in the 22 CFR, parts 1 to 299, 
edition revised as of April 1, 1998, has been lost, mutilated, 
destroyed, or expired, the person to whom such card was issued may apply 
for a new B-1/B-2 Visa/BCC as provided in this section.

[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]



Sec. 41.33  Nonresident alien Canadian border crossing identification card 

(BCC).

    (a) Validity of Canadian BCC. A Canadian BCC or the BCC portion of a 
Canadian B-1/B-2 Visa/BCC issued to a permanent resident of Canada 
pursuant to provisions of this section contained in the 22 CFR, parts 1 
to 299, edition revised as of April 1, 1998, is valid until the date of 
expiration, if any, unless previously revoked, but not later than the 
date, currently October 1, 2001, on which a machine readable biometric 
identifier is required in order for a BCC to be usable for entry.
    (b) Revocation of Canadian BCC. A consular or immigration officer 
may revoke a BCC or a B-1/B-2 Visa/BCC issued in Canada at any time 
under the provisions of Sec. 41.122, or if the consular or immigration 
officer determines that the alien to whom any such document was issued 
has ceased to be a permanent resident of Canada. Upon revocation, the 
consular or immigration officer shall notify the issuing consular office 
and if the revoked document is a card, the consular or immigration 
officer shall take possession of the card and physically cancel it under 
standard security conditions. If the revoked document is a stamp in a 
passport the consular or immigration officer shall write or stamp 
``canceled'' on the face of the document.
    (c) Voidance. (1) The voiding pursuant to INA 222(g) of the visa 
portion of a B-1/B-2 Visa/BCC issued at any time by a consular officer 
in Canada under provisions of this section contained in the 22 CFR, 
parts 1 to 299, edition revised as of April 1, 1998, also voids the BCC 
portion of that document.
    (2) A BCC issued at any time by a consular officer in Canada under 
any provisions of this section contained in the 22 CFR, parts 1 to 299, 
edition revised as of April 1, 1998, is void if a consular or 
immigration officer finds that the alien has violated the conditions of 
the alien's admission into the United States, including the period of 
stay authorized by the Secretary of Homeland Security.
    (3) A consular or immigration officer shall immediately take 
possession of a card determined to be void under paragraphs (c) (1) or 
(2) of this section and physically cancel it under standard security 
conditions. If the document voided under paragraphs (c) (1) or (2) is in 
the form of a stamp in a passport the officer shall write or stamp 
``canceled'' across the face of the document.

[64 FR 45164, Aug. 19, 1999]

[[Page 165]]



                  Subpart E_Crewman and Crew-List Visas



Sec. 41.41  Crewmen.

    (a) Alien classifiable as crewman. An alien is classifiable as a 
nonimmigrant crewman upon establishing to the satisfaction of the 
consular officer the qualifications prescribed by INA 101(a)(15)(D), 
provided that the alien has permission to enter some foreign country 
after a temporary landing in the United States, unless the alien is 
barred from such classification under the provisions of INA 214(f).
    (b) Alien not classifiable as crewman. An alien employed on board a 
vessel or aircraft in a capacity not required for normal operation and 
service, or an alien employed or listed as a regular member of the crew 
in excess of the number normally required, shall not be classified as a 
crewman.

[52 FR 42597, Nov. 5, 1987, as amended at 66 FR 10364, Feb. 15, 2001]



Sec. 41.42  [Reserved]



                   Subpart F_Business and Media Visas



Sec. 41.51  Treaty trader, treaty investor, or treaty alien in a specialty 

occupation.

    (a) Treaty trader--(1) Classification. An alien is classifiable as a 
nonimmigrant treaty trader (E-1) if the consular officer is satisfied 
that the alien qualifies under the provisions of INA 101(a)(15)(E)(i) 
and that the alien:
    (i) Will be in the United States solely to carry on trade of a 
substantial nature, which is international in scope, either on the 
alien's behalf or as an employee of a foreign person or organization 
engaged in trade, principally between the United States and the foreign 
state of which the alien is a national, (consideration being given to 
any conditions in the country of which the alien is a national which may 
affect the alien's ability to carry on such substantial trade); and
    (ii) Intends to depart from the United States upon the termination 
of E-1 status.
    (2) Employee of treaty trader. An alien employee of a treaty trader 
may be classified E-1 if the employee is in or is coming to the United 
States to engage in duties of an executive or supervisory character, or, 
if employed in a lesser capacity, the employee has special 
qualifications that make the services to be rendered essential to the 
efficient operation of the enterprise. The employer must be:
    (i) A person having the nationality of the treaty country, who is 
maintaining the status of treaty trader if in the United States or, if 
not in the United States, would be classifiable as a treaty trader; or
    (ii) An organization at least 50% owned by persons having the 
nationality of the treaty country who are maintaining nonimmigrant 
treaty trader status if residing in the United States or, if not 
residing in the United States, who would be classifiable as treaty 
traders.
    (3) Spouse and children of treaty trader. The spouse and children of 
a treaty trader accompanying or following to join the principal alien 
are entitled to the same classification as the principal alien. The 
nationality of a spouse or child of a treaty trader is not material to 
the classification of the spouse or child under the provisions of INA 
101(a)(15)(E).
    (4) Representative of foreign information media. Representatives of 
foreign information media shall first be considered for possible 
classification as nonimmigrants under the provisions of INA 
101(a)(15)(I), before consideration is given to their possible 
classification as treaty traders under the provisions of INA 
101(a)(15)(E) and of this section.
    (5) Treaty country. A treaty country is for purposes of this section 
a foreign state with which a qualifying Treaty of Friendship, Commerce, 
and Navigation or its equivalent exists with the United States. A treaty 
country includes a foreign state that is accorded treaty visa privileges 
under INA 101(a)(15)(E) by specific legislation (other than the INA).
    (6) Nationality of the treaty country. The authorities of the 
foreign state of which the alien claims nationality determine the 
nationality of an individual treaty trader. In the case of an 
organization, ownership must be traced

[[Page 166]]

as best as is practicable to the individuals who ultimately own the 
organization.
    (7) Trade. The term ``trade'' as used in this section means the 
existing international exchange of items of trade for consideration 
between the United States and the treaty country. Existing trade 
includes successfully negotiated contracts binding upon the parties that 
call for the immediate exchange of items of trade. This exchange must be 
traceable and identifiable. Title to the trade item must pass from one 
treaty party to the other.
    (8) Item of trade. Items that qualify for trade within these 
provisions include but are not limited to goods, services, technology, 
monies, international banking, insurance, transportation, tourism, 
communications, and some news gathering activities.
    (9) Substantial trade. Substantial trade for the purposes of this 
section entails the quantum of trade sufficient to ensure a continuous 
flow of trade items between the United States and the treaty country. 
This continuous flow contemplates numerous exchanges over time rather 
than a single transaction, regardless of the monetary value. Although 
the monetary value of the trade item being exchanged is a relevant 
consideration, greater weight is given to more numerous exchanges of 
larger value. In the case of smaller businesses, an income derived from 
the value of numerous transactions that is sufficient to support the 
treaty trader and his or her family constitutes a favorable factor in 
assessing the existence of substantial trade.
    (10) Principal trade. Trade shall be considered to be principal 
trade between the United States and the treaty country when over 50% of 
the volume of international trade of the treaty trader is conducted 
between the United States and the treaty country of the treaty trader's 
nationality.
    (11) Executive or supervisory character. The executive or 
supervisory element of the employee's position must be a principal and 
primary function of the position and not an incidental or collateral 
function. Executive and/or supervisory duties grant the employee 
ultimate control and responsibility for the enterprise's overall 
operation or a major component thereof.
    (i) An executive position provides the employee great authority to 
determine policy of and direction for the enterprise.
    (ii) A position primarily of supervisory character grants the 
employee supervisory responsibility for a significant proportion of an 
enterprise's operations and does not generally involve the direct 
supervision of low-level employees.
    (12) Special qualifications. Special qualifications are those skills 
and/or aptitudes that an employee in a lesser capacity brings to a 
position or role that are essential to the successful or efficient 
operation of the enterprise.
    (i) The essential nature of the alien's skills to the employing firm 
is determined by assessing the degree of proven expertise of the alien 
in the area of operations involved, the uniqueness of the specific skill 
or aptitude, the length of experience and/or training with the firm, the 
period of training or other experience necessary to perform effectively 
the projected duties, and the salary the special qualifications can 
command. The question of special skills and qualifications must be 
determined by assessing the circumstances on a case-by-case basis.
    (ii) Whether the special qualifications are essential will be 
assessed in light of all circumstances at the time of each visa 
application on a case-by-case basis. A skill that is unique at one point 
may become commonplace at a later date. Skills required to start up an 
enterprise may no longer be essential after initial operations are 
complete and are running smoothly. Some skills are essential only in the 
short-term for the training of locally hired employees. Long-term 
essentiality might, however, be established in connection with 
continuous activities in such areas as product improvement, quality 
control, or the provision of a service not generally available in the 
United States.
    (13) Labor disputes. Citizens of Canada or Mexico shall not be 
entitled to classification under this section if the Secretary of 
Homeland Security and the Secretary of Labor have certified that:

[[Page 167]]

    (i) There is in progress a strike or lockout in the course of a 
labor dispute in the occupational classification at the place or 
intended place of employment; and
    (ii) The alien has failed to establish that the alien's entry will 
not affect adversely the settlement of the strike or lockout or the 
employment of any person who is involved in the strike or lockout.
    (b) Treaty investor--(1) Classification. An alien is classifiable as 
a nonimmigrant treaty investor (E'2) if the consular officer is 
satisfied that the alien qualifies under the provisions of INA 
101(a)(15)(E)(ii) and that the alien:
    (i) Has invested or is actively in the process of investing a 
substantial amount of capital in bona fide enterprise in the United 
States, as distinct from a relatively small amount of capital in a 
marginal enterprise solely for the purpose of earning a living; and
    (ii) Is seeking entry solely to develop and direct the enterprise; 
and
    (iii) Intends to depart from the United States upon the termination 
of E'2 status.
    (2) Employee of treaty investor. An alien employee of a treaty 
investor may be classified E-2 if the employee is in or is coming to the 
United States to engage in duties of an executive or supervisory 
character, or, if employed in a lesser capacity, the employee has 
special qualifications that make the services to be rendered essential 
to the efficient operation of the enterprise. The employer must be:
    (i) A person having the nationality of the treaty country, who is 
maintaining the status of treaty investor if in the United States or, if 
not in the United States, who would be classifiable as a treaty 
investor; or
    (ii) An organization at least 50% owned by persons having the 
nationality of the treaty country who are maintaining nonimmigrant 
treaty investor status if residing in the United States or, if not 
residing in the United States, who would be classifiable as treaty 
investors.
    (3) Spouse and children of treaty investor. The spouse and children 
of a treaty investor accompanying or following to join the principal 
alien are entitled to the same classification as the principal alien. 
The nationality of a spouse or child of a treaty investor is not 
material to the classification of the spouse or child under the 
provisions of INA 101(a)(15)(E).
    (4) Representative of foreign information media. Representatives of 
foreign information media shall first be considered for possible 
classification as nonimmigrants under the provisions of INA 
101(a)(15)(I), before consideration is given to their possible 
classification as nonimmigrants under the provisions of INA 
101(a)(15)(E) and of this section.
    (5) Treaty country. A treaty country is for purposes of this section 
a foreign state with which a qualifying Treaty of Friendship, Commerce, 
and Navigation or its equivalent exists with the United States. A treaty 
country includes a foreign state that is accorded treaty visa privileges 
under INA 101(a)(15)(E) by specific legislation (other than the INA).
    (6) Nationality of the treaty country. The authorities of the 
foreign state of which the alien claims nationality determine the 
nationality of an individual treaty investor. In the case of an 
organization, ownership must be traced as best as is practicable to the 
individuals who ultimately own the organization.
    (7) Investment. Investment means the treaty investor's placing of 
capital, including funds and other assets, at risk in the commercial 
sense with the objective of generating a profit. The treaty investor 
must be in possession of and have control over the capital invested or 
being invested. The capital must be subject to partial or total loss if 
investment fortunes reverse. Such investment capital must be the 
investor's unsecured personal business capital or capital secured by 
personal assets. Capital in the process of being invested or that has 
been invested must be irrevocably committed to the enterprise. The alien 
has the burden of establishing such irrevocable commitment given to the 
particular circumstances of each case. The alien may use any legal 
mechanism available, such as by placing invested funds in escrow pending 
visa issuance, that would not only irrevocably commit funds to the 
enterprise but that might

[[Page 168]]

also extend some personal liability protection to the treaty investor.
    (8) Bona fide enterprise. The enterprise must be a real and active 
commercial or entrepreneurial undertaking, producing some service or 
commodity for profit and must meet applicable legal requirements for 
doing business in the particular jurisdiction in the United States.
    (9) Substantial amount of capital. A substantial amount of capital 
constitutes that amount that is:
    (i)(A) Substantial in the proportional sense, i.e., in relationship 
to the total cost of either purchasing an established enterprise or 
creating the type of enterprise under consideration;
    (B) Sufficient to ensure the treaty investor's financial commitment 
to the successful operation of the enterprise; and
    (C) Of a magnitude to support the likelihood that the treaty 
investor will successfully develop and direct the enterprise.
    (ii) Whether an amount of capital is substantial in the 
proportionality sense is understood in terms of an inverted sliding 
scale; i.e., the lower the total cost of the enterprise, the higher, 
proportionately, the investment must be to meet these criteria.
    (10) Marginal enterprise. A marginal enterprise is an enterprise 
that does not have the present or future capacity to generate more than 
enough income to provide a minimal living for the treaty investor and 
his or her family. An enterprise that does not have the capacity to 
generate such income but that has a present or future capacity to make a 
significant economic contribution is not a marginal enterprise. The 
projected future capacity should generally be realizable within five 
years from the date the alien commences normal business activity of the 
enterprise.
    (11) Solely to develop and direct. The business or individual treaty 
investor does or will develop and direct the enterprise by controlling 
the enterprise through ownership of at least 50% of the business, by 
possessing operational control through a managerial position or other 
corporate device, or by other means.
    (12) Executive or supervisory character. The executive or 
supervisory element of the employee's position must be a principal and 
primary function of the position and not an incidental or collateral 
function. Executive and/or supervisory duties grant the employee 
ultimate control and responsibility for the enterprise's overall 
operation or a major component thereof.
    (i) An executive position provides the employee great authority to 
determine policy of and direction for the enterprise.
    (ii) A position primarily of supervisory character grants the 
employee supervisory responsibility for a significant proportion of an 
enterprise's operations and does not generally involve the direct 
supervision of low-level employees.
    (13) Special qualifications. Special qualifications are those skills 
and/or aptitudes that an employee in a lesser capacity brings to a 
position or role that are essential to the successful or efficient 
operation of the enterprise.
    (i) The essential nature of the alien's skills to the employing firm 
is determined by assessing the degree of proven expertise of the alien 
in the area of operations involved, the uniqueness of the specific skill 
or aptitude, the length of experience and/or training with the firm, the 
period of training or other experience necessary to perform effectively 
the projected duties, and the salary the special qualifications can 
command. The question of special skills and qualifications must be 
determined by assessing the circumstances on a case-by-case basis.
    (ii) Whether the special qualifications are essential will be 
assessed in light of all circumstances at the time of each visa 
application on a case-by-case basis. A skill that is unique at one point 
may become commonplace at a later date. Skills required to start up an 
enterprise may no longer be essential after initial operations are 
complete and are running smoothly. Some skills are essential only in the 
short-term for the training of locally hired employees. Long-term 
essentiality might, however, be established in connection with 
continuous activities in such areas as product improvement, quality 
control, or the provision of a

[[Page 169]]

service not generally available in the United States.
    (14) Labor disputes. Citizens of Canada or Mexico shall not be 
entitled to classification under this section if the Secretary of 
Homeland Security and the Secretary of Labor have certified that:
    (i) There is in progress a strike or lockout in the course of a 
labor dispute in the occupational classification at the place or 
intended place of employment; and
    (ii) The alien has failed to establish that the alien's entry will 
not affect adversely the settlement of the strike or lockout or the 
employment of any person who is involved in the strike or lockout.
    (c) Nonimmigrant E-3 treaty aliens in specialty occupations--(1) 
Classification. An alien is classifiable as a nonimmigrant treaty alien 
in a specialty occupation if the consular officer is satisfied that the 
alien qualifies under the provisions of INA 101(a)(15)(E)(iii) and that 
the alien:
    (i) Possesses the nationality of the country statutorily designated 
for treaty aliens in specialty occupation status;
    (ii) Satisfies the requirements of INA 214(i)(1) and the 
corresponding regulations defining specialty occupation promulgated by 
the Department of Homeland Security;
    (iii) Presents to a consular officer a copy of the Labor Condition 
Application signed by the employer and approved by the Department of 
Labor, and meeting the attestation requirements of INA Section 
212(t)(1);
    (iv) Presents to a consular officer evidence of the alien's academic 
or other qualifying credentials as required under INA 214(i)(1), and a 
job offer letter or other documentation from the employer establishing 
that upon entry into the United States the applicant will be engaged in 
qualifying work in a specialty occupation, as defined in paragraph 
(c)(1)(ii) of this section, and that the alien will be paid the actual 
or prevailing wage referred to in INA 212(t)(1);
    (v) Has a visa number allocated under INA 214(g)(11)(B); and,
    (vi) Intends to depart upon the termination of E-3 status.
    (2) Spouse and children of treaty alien in a specialty occupation. 
The spouse and children of a treaty alien in a specialty occupation 
accompanying or following to join the principal alien are, if otherwise 
admissible, entitled to the same classification as the principal alien. 
A spouse or child of a principal E-3 treaty alien need not have the same 
nationality as the principal in order to be classifiable under the 
provisions of INA 101(a)(15)(E). Spouses and children of E-3 principals 
are not subject to the numerical limitations of INA 214(g)(11)(B).

[70 FR 52293, Sept. 2, 2005]



Sec. 41.52  Information media representative.

    (a) Representative of foreign press, radio, film, or other 
information media. An alien is classifiable as a nonimmigrant 
information media representative if the consular officer is satisfied 
that the alien qualifies under the provisions of INA 101(a)(15)(I) and 
is a representative of a foreign press, radio, film, or other 
information medium having its home office in a foreign country, the 
government of which grants reciprocity for similar privileges to 
representatives of such a medium having home offices in the United 
States.
    (b) Classification when applicant eligible for both I visa and E 
visa. An alien who will be engaged in foreign information media 
activities in the United States and meets the criteria set forth in 
paragraph (a) of this section shall be classified as a nonimmigrant 
under INA 101(a)(15)(I) even if the alien may also be classifiable as a 
nonimmigrant under the provisions of INA 101(a)(15)(E).
    (c) Spouse and children of information media representative. The 
spouse or child of an information media representative is classifiable 
under INA 101(a)(15)(I) if accompanying or following to join the 
principal alien.



Sec. 41.53  Temporary workers and trainees.

    (a) Requirements for H classification. An alien shall be 
classifiable under INA 101(a)(15)(H) if:

[[Page 170]]

    (1) The consular officer is satisfied that the alien qualifies under 
that section; and either
    (2) With respect to the principal alien, the consular officer has 
received official evidence of the approval by DHS, or by the Department 
of Labor in the case of temporary agricultural workers, of a petition to 
accord such classification or of the extension by DHS of the period of 
authorized entry in such classification; or
    (3) The consular officer is satisfied the alien is the spouse or 
child of an alien so classified and is accompanying or following to join 
the principal alien.
    (b) Petition approval. The approval of a petition by the Department 
of Homeland Security or by the Department of Labor does not establish 
that the alien is eligible to receive a nonimmigrant visa.
    (c) Validity of visa. The period of validity of a visa issued on the 
basis of paragraph (a) to this section must not exceed the period 
indicated in the petition, notification, or confirmation required in 
paragraph (a)(2) of this section.
    (d) Alien not entitled to H classification. The consular officer 
must suspend action on this alien's application and submit a report to 
the approving DHS office if the consular officer knows or has reason to 
believe that an alien applying for a visa under INA 101(a)(15)(H) is not 
entitled to the classification as approved.
    (e) ``Trainee'' defined. The term Trainee, as used in INA 
101(a)(15)(H)(iii), means a nonimmigrant alien who seeks to enter the 
United States temporarily at the invitation of an individual, 
organization, firm, or other trainer for the purpose of receiving 
instruction in any field of endeavor (other than graduate medical 
education or training), including agriculture, commerce, communication, 
finance, government, transportation, and the professions.
    (f) Former exchange visitor. Former exchange visitors who are 
subject to the 2-year residence requirement of INA 212(e) are ineligible 
to apply for visas under INA 101(a)(15)(H) until they have fulfilled the 
residence requirement or obtained a waiver of the requirement.

[57 FR 31449, July 16, 1992; as amended at 61 FR 1833, Jan. 24, 1996; 65 
FR 52306, Aug. 29, 2000]



Sec. 41.54  Intracompany transferees (executives, managers, and specialists).

    (a) Requirements for L classification. An alien shall be 
classifiable under the provisions of INA 101(a)(15)(L) if:
    (1) The consular officer is satisfied that the alien qualifies under 
that section; and either
    (2) In the case of an individual petition, the consular officer has 
received official evidence of the approval by DHS of a petition to 
accord such classification or of the extension by DHS of the period of 
authorized stay in such classification; or
    (3) In the case of a blanket petition, the alien has presented to 
the consular officer official evidence of the approval by DHS of a 
blanket petition
    (i) listing only those intracompany relationships and positions 
found to qualify under INA 101(a)(15)(L) or
    (ii) to accord such classification to qualified aliens who are being 
transferred to qualifying positions identified in such blanket petition; 
or
    (4) The consular officer is satisfied the alien is the spouse or 
child of an alien so classified and is accompanying or following to join 
the principal alien.
    (b) Petition approval. The approval of a petition by DHS does not 
establish that the alien is eligible to receive a nonimmigrant visa.
    (c) Validity of visa. (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.
    (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.
    (d) Alien not entitled to L-1 classification under individual 
petition. The consular officer must suspend action on the alien's 
application and submit a report to the approving DHS office if the

[[Page 171]]

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.
    (e) Labor disputes. Citizens of Canada or Mexico shall not be 
entitled to classification under this section if the Secretary of 
Homeland Security and the Secretary of Labor have certified that:
    (1) There is in progress a strike or lockout in the course of a 
labor dispute in the occupational classification at the place or 
intended place of employment; and
    (2) The alien has failed to establish that the alien's entry will 
not affect adversely the settlement of the strike or lockout or the 
employment of any person who is involved in the strike or lockout.
    (f) Alien not entitled to L-1 classification under blanket petition. 
The consular officer shall deny L classification based on a blanket 
petition if the documentation presented by the alien claiming to be a 
beneficiary thereof does not establish to the satisfaction of the 
consular officer that
    (1) The alien has been continuously employed by the same employer, 
an affiliate or a subsidiary thereof, for 1 year within the 3 years 
immediately preceding the application for the L visa;
    (2) The alien was occupying a qualifying position throughout that 
year; or
    (3) The alien is destined to a qualifying position identified in the 
petition and in an organization listed in the petition.
    (g) Former exchange visitor. 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.

[57 FR 31449, July 16, 1992, as amended at 58 FR 68527, Dec. 28, 1993; 
61 FR 1833, Jan. 24, 1996]



Sec. 41.55  Aliens with extraordinary ability.

    (a) Requirements for O classification. An alien shall be 
classifiable under the provisions of INA 101(a)(15)(O) if:
    (1) The consular officer is satisfied that the alien qualifies under 
the provisions of that section; and either
    (2) With respect to the principal alien, the consular officer has 
received official evidence of the approval by DHS of a petition to 
accord such classification or of the extension by DHS of the period of 
authorized stay in such classification; or
    (3) The consular officer is satisfied the alien is the spouse or 
child of an alien so classified and is accompanying or following to join 
the principal alien.
    (b) Approval of visa. The approval of a petition by DHS does not 
establish that the alien is eligible to receive a nonimmigrant visa.
    (c) Validity of visa. The period of validity of a visa issued on the 
basis of paragraph (a) to this section must not exceed the period 
indicated in the petition, notification, or confirmation required in 
paragraph (a)(2) of this section.
    (d) Alien not entitled to O classification. The consular officer 
must suspend action on the alien's application and submit a report to 
the approving DHS office if the consular officer knows or has reason to 
believe that an alien applying for a visa under INA 101(a)(15)(O) is not 
entitled to the classification as approved.

[57 FR 31450, July 16, 1992; as amended at 61 FR 1833, Jan. 24, 1996]



Sec. 41.56  Athletes, artists and entertainers.

    (a) Requirements for P classification. An alien shall be 
classifiable under the provisions of INA 101(a)(15)(P) if:
    (1) The consular officer is satisfied that the alien qualifies under 
the provisions of that section; and either
    (2) With respect to the principal alien, the consular officer has 
received official evidence of the approval by DHS of a petition to 
accord such classification or of the extension by DHS of the period of 
authorized stay in such classification; or
    (3) The consular officer is satisfied the alien is the spouse or 
child of an alien so classified and is accompanying or following to join 
the principal alien.
    (b) Approval of visa. The approval of a petition by DHS does not 
establish

[[Page 172]]

that the alien is eligible to receive a nonimmigrant visa.
    (c) Validity of visa. The period of validity of a visa issued on the 
basis of paragraph (a) to this section must not exceed the period 
indicated in the petition, confirmation, or extension of stay required 
in paragraph (a)(2) of this section.
    (d) Alien not entitled to P classification. The consular officer 
must suspend action on the alien's application and submit a report to 
the approving DHS office if the consular officer knows or has reason to 
believe that an alien applying for a visa under INA 101(a)(15)(P) is not 
entitled to the classification as approved.

[57 FR 31450, July 16, 1992; as amended at 61 FR 1833, Jan. 24, 1996]



Sec. 41.57  International cultural exchange visitors and visitors under the 

Irish Peace Process Cultural and Training Program Act (IPPCTPA).

    (a) International cultural exchange visitors--(1) Requirements for 
classification under INA section 101(a)(15)(Q)(i). A consular officer 
may classify an alien under the provisions of INA 101(a)(15)(Q)(i) if:
    (i) The consular officer is satisfied that the alien qualifies under 
the provisions of that section, and
    (ii) The consular officer has received official evidence of the 
approval by DHS of a petition or the extension by DHS of the period of 
authorized stay in such classification.
    (2) Approval of petition. DHS approval of a petition does not 
establish that the alien is eligible to receive a nonimmigrant visa.
    (3) Validity of visa. The period of validity of a visa issued on the 
basis of this paragraph (a) must not exceed the period indicated in the 
petition, notification, or confirmation required in paragraph (a)(2) of 
this section.
    (4) Alien not entitled to Q classification. The consular officer 
must suspend action on the alien's application and submit a report to 
the approving DHS office if the consular officer knows or has reason to 
believe that an alien does not qualify under INA section 
101(a)(15)(Q)(i).
    (b) Trainees under INA section 101(a)(15)(Q)(ii)--(1) Requirements 
for classification under INA section 101(a)(15)(Q)(ii). A consular 
officer may classify an alien under the provisions of INA section 
101(a)(15)(Q)(ii) if:
    (i) The consular officer is satisfied that the alien qualifies under 
the provisions of that section;
    (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:
    (A) The name of the alien's employer in the United States, and, if 
applicable, in Ireland or Northern Ireland;
    (B) If the alien is participating in the IPPCTP as an unemployed 
alien, that 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;
    (C) That the program administrator has accepted the alien into the 
program;
    (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;
    (E) The alien's date and place of birth;
    (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;
    (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.
    (2) Aliens not entitled to such classification. The consular officer 
must suspend action on the alien's application and

[[Page 173]]

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).

[65 FR 14770, Mar. 17, 2000, as amended at 66 FR 52502, Oct. 16, 2001]



Sec. 41.58  Aliens in religious occupations.

    (a) Requirements for ``R'' classification. An alien shall be 
classifiable under the provisions of INA 101(a)(15)(R) if:
    (1) The consular officer is satisfied that the alien qualifies under 
the provisions of that section; and
    (2) With respect to the principal alien, the consular officer has 
received official evidence of the approval by USCIS of a petition to 
accord such classification or the extension by USCIS of the period of 
authorized stay in such classification; or
    (3) The alien is the spouse or child of an alien so classified and 
is accompanying or following to join the principal alien.
    (b) Petition approval. The approval of a petition by USCIS does not 
establish that the alien is eligible to receive a nonimmigrant visa.
    (c) Validity of visa. The period of validity of a visa issued on the 
basis of paragraph (a) to this section must not precede or exceed the 
period indicated in the petition, notification, or confirmation required 
in paragraph (a)(2) of this section.
    (d) Aliens not entitled to classification under INA 101(a)(15)(R). 
The consular officer must suspend action on the alien's application and 
submit a report to the approving USCIS office if the consular officer 
knows or has reason to believe that an alien applying for a visa under 
INA 101(a)(15)(R) is not entitled to the classification as approved.

[74 FR 51237, Oct. 6, 2009]



Sec. 41.59  Professionals under the North American Free Trade Agreement.

    (a) Requirements for classification as a NAFTA professional. An 
alien shall be classifiable under the provisions of INA 214(e) if:
    (1) The consular officer is satisfied that the alien qualifies under 
the provisions of that section; and
    (2) 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
    (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
    (4) The alien is the spouse or child of an alien so classified and 
is accompanying or following to join the principal alien.
    (b) Visa validity. The period of validity of a visa issued pursuant 
to paragraph (a) of this section may not exceed the period 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.
    (c) Temporary entry. Temporary entry means an entry into the United 
States without the intent to establish permanent residence. The alien 
must satisfy the consular officer that the proposed stay is temporary. A 
temporary period has a reasonable, finite end that does not equate to 
permanent residence. The circumstances surrounding an application should 
reasonably and convincingly indicate that the alien's temporary work 
assignment in the United States will end predictably and that the alien 
will depart upon completion of the assignment.
    (d) Labor disputes. Citizens of Canada or Mexico shall not be 
entitled to classification under this section if the Secretary of 
Homeland Security and the Secretary of Labor have certified that:
    (1) There is in progress a strike or lockout in the course of a 
labor dispute in the occupational classification at

[[Page 174]]

the place or intended place of employment; and
    (2) The alien has failed to establish that the alien's entry will 
not affect adversely the settlement of the strike or lockout or the 
employment of any person who is involved in the strike or lockout.

[58 FR 68527, Dec. 28, 1993, as amended at 63 FR 10305, Mar. 3, 1998]



                Subpart G_Students and Exchange Visitors



Sec. 41.61  Students--academic and nonacademic.

    (a) Definitions--(1) Academic, in INA 101(a)(15)(F), refers to an 
established college, university, seminary, conservatory, academic high 
school, elementary school, or other academic institution, or a language 
training program.
    (2) Nonacademic, in INA 101(a)(15)(M), refers to an established 
vocational or other recognized nonacademic institution (other than a 
language training program).
    (b) Classification. (1) An alien is classifiable under INA 
101(a)(15)(F) (i) or (iii) or INA 101(a)(15)(M) (i) or (iii) if the 
consular officer is satisfied that the alien qualifies under one of 
those sections, and:
    (i) The alien has been accepted for attendance for the purpose of 
pursuing a full course of study, or, for students classified under INA 
101(a)(15) (F)(iii) and (M)(iii) Border Commuter Students, full or part-
time course of study, in an academic institution approved by the 
Secretary of Homeland Security for foreign students under INA 
101(a)(15)(F)(i) or a nonacademic institution approved under 
101(a)(15)(M)(i). The alien has presented a SEVIS Form I-20, Form I-20A-
B/I-20ID. Certificate of Eligibility For Nonimmigrant Student Status--
For Academic and Language Students, or Form I-20M-N/I-20ID, Certificate 
of Eligibility for Nonimmigrant Student Status--For Vocational Students, 
properly completed and signed by the alien and a designated official as 
prescribed in regulations found at 8 CFR 214.2(F) and 214.2(M);
    (ii) The alien possesses sufficient funds to cover expenses while in 
the United States or can satisfy the consular officer that other 
arrangements have been made to meet those expenses;
    (iii) The alien, unless coming to participate exclusively in an 
English language training program, has sufficient knowledge of the 
English language to undertake the chosen course of study or training. If 
the alien's knowledge of English is inadequate, the consular officer may 
nevertheless find the alien so classifiable if the accepting institution 
offers English language training, and has accepted the alien expressly 
for a full course of study (or part-time course of study for Border 
Commuter Students) in a language with which the alien is familiar, or 
will enroll the alien in a combination of courses and English 
instruction which will constitute a full course of study if required; 
and
    (iv) The alien intends, and will be able, to depart upon termination 
of student status.
    (2) An alien otherwise qualified for classification as a student, 
who intends to study the English language exclusively, may be classified 
as a student under INA 101(a) (15) (F) (i) even though no credits are 
given by the accepting institution for such study. The accepting 
institution, however, must offer a full course of study in the English 
language and must accept the alien expressly for such study.
    (3) The alien spouse and minor children of an alien who has been or 
will be issued a visa under INA 101(a) (15) (F) (i) or 101(a) (15) (M) 
(i) may receive nonimmigrant visas under INA 101(a) (15) (F) (ii) or 
101(a) (15) (M) (ii) if the consular officer is satisfied that they will 
be accompanying or following to join the principal alien; that 
sufficient funds are available to cover their expenses in the United 
States; and, that they intend to leave the United States upon the 
termination of the status of the principal alien.
    (c) Posting of bond. In borderline cases involving an alien 
otherwise qualified for classification under INA 101(a) (15) (F), the 
consular officer is authorized to require the posting of a bond with the 
Secretary of Homeland Security in a sum sufficient to ensure

[[Page 175]]

that the alien will depart upon the conclusion of studies or in the 
event of failure to maintain student status.
    (d) Electronic verification and notification. A student's acceptance 
documentation must be verified by a consular official's review of the 
SEVIS data in the Consolidated Consular Database or via direct access to 
SEVIS or ISEAS prior to the issuance of an F-1, F-2, M-1 or M-3 visa. 
Evidence of the payment of any applicable fees, if not presented with 
other documentation, may also be verified through the Consolidated 
Consular Database or direct access to SEVIS. Upon issuance of an F or M 
visa, notification of such issuance must be entered into the SEVIS 
database.

[52 FR 42597, Nov. 5, 1987, as amended at 67 FR 58695, Sept. 18, 2002; 
68 FR 28131, May 23, 2003]



Sec. 41.62  Exchange visitors.

    (a) J-1 classification. An alien is classifiable as an exchange 
visitor if qualified under the provisions of INA 101(a) (15) (J) and the 
consular officer is satisfied that the alien:
    (1) Has been accepted to participate, and intends to participate, in 
an exchange visitor program designated by the Bureau of Education and 
Cultural Affairs, Department of State, as evidenced by the presentation 
of a properly executed Form DS-2019, Certificate of Eligibility for 
Exchange Visitor (J-1) Status;
    (2) Has sufficient funds to cover expenses or has made other 
arrangements to provide for expenses;
    (3) Has sufficient knowledge of the English language to undertake 
the program for which selected, or, except for an alien coming to 
participate in a graduate medical education or training program, the 
sponsoring organization is aware of the language deficiency and has 
nevertheless indicated willingness to accept the alien; and
    (4) Meets the requirements of INA 212(j) if coming to participate in 
a graduate medical education or training program.
    (5) Electronic verification and notification. An exchange visitor's 
acceptance documentation and payment of any applicable fees must be 
verified by a consular official's review of the SEVIS database or via 
direct access to SEVIS or ISEAS prior to the issuance of a J-1 or J-2 
visa. Evidence of the payment of any applicable fees, if not presented 
with other documentation, may also be verified through the Consolidated 
Consular Database or direct access to SEVIS. Upon issuance of a J-1 or 
J-2 visa, notification of such issuance must be entered into the SEVIS 
database.
    (b) J-2 Classification. The spouse or minor child of an alien 
classified J-1 is classifiable J-2.
    (c) Applicability of INA 212(e). (1) An alien is subject to the 2-
year foreign residence requirement of INA 212(e) if:
    (i) The alien's participation in one or more exchange programs was 
wholly or partially financed, directly or indirectly, by the U.S. 
Government or by the government of the alien's last legal permanent 
residence; or
    (ii) At the time of the issuance of an exchange visitor visa and 
admission to the United States, or, if not required to obtain a 
nonimmigrant visa, at the time of admission as an exchange visitor, or 
at the time of acquisition of such status after admission, the alien is 
a national and resident or, if not a national, a legal permanent 
resident (or has status equivalent thereto) of a country which the 
Secretary of State has designated, through publication by public notice 
in the Federal Register, 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
    (iii) The alien acquires exchange visitor status in order to receive 
graduate medical education or training in the United States.
    (2) For the purposes of this paragraph the terms financed directly 
and financed indirectly are defined as set forth in section Sec. 514.1 
of chapter V.
    (3) The country in which 2 years' residence and physical presence 
will satisfy the requirements of INA 212(e) in the case of an alien 
determined to be subject to such requirements is the country of which 
the alien is a national and resident, or, if not a national, a legal 
permanent resident (or has status equivalent thereto).
    (4) If an alien is subject to the 2-year foreign residence 
requirement of INA

[[Page 176]]

212(e), the spouse or child of that alien, accompanying or following to 
join the alien, is also subject to that requirement if admitted to the 
United States pursuant to INA 101(a) (15) (J) or if status is acquired 
pursuant to that section after admission.
    (d) Notification to alien concerning 2-year foreign residence 
requirement. Before the consular officer issues an exchange visitor 
visa, the consular officer must inform the alien whether the alien will 
be subject to the 2-year residence and physical presence requirement of 
INA 212(e) if admitted to the United States under INA 101(a) (15) (J) 
and, if so, the country in which 2 years' residence and physical 
presence will satisfy the requirement.

[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]



Sec. 41.63  Two-year home-country physical presence requirement.

    (a) Statutory basis for rule. Section 212(e) of the Immigration and 
Nationality Act, as amended, provides in substance as follows:
    (1) No person admitted under Section 101(a) (15)(J) or acquiring 
such status after admission:
    (i) Whose participation in the program for which he came to the 
United States was financed in whole or in part, directly or indirectly, 
by an agency of the United States Government or by the government of the 
country of his nationality or of his last legal permanent residence;
    (ii) Who at the time of admission or acquisition of status under 
101(a)(15)(J) was a national or legal permanent resident of a country 
which the Secretary of State, pursuant to regulations prescribed by him, 
had designated as clearly requiring the services of persons engaged in 
the field of specialized knowledge or skill in which the alien was 
engaged [See the most recent ``Revised Exchange Visitor Skills List'', 
at http://exchanges.state.gov/education/jexchanges/participation/
skills--list.pdf]; or
    (iii) Who came to the United States or acquired such status in order 
to receive graduate medical education or training, shall be eligible to 
apply for an immigrant visa, or for permanent residence, or for a 
nonimmigrant visa under section 101(a)(15)(H) or section 101(a)(15)(L) 
until is established that such person has resided and been physically 
present in the country of his nationality or his last legal permanent 
residence for an aggregate of at least two years following departure 
from the United States.
    (2) Upon the favorable recommendation of the Secretary of State, 
pursuant to the request of an interested United States Government agency 
(or in the case of an alien who is a graduate of a foreign medical 
school pursuing a program in graduate medical education or training, 
pursuant to the request of a State Department of Public Health, or its 
equivalent), or of the Secretary of Homeland Security after the latter 
has determined that departure from the United States would impose 
exceptional hardship upon the alien's spouse or child (if such spouse or 
child is a citizen of the United States or a legal permanent resident 
alien), or that the alien cannot return to the country of his 
nationality or last legal permanent residence because he would be 
subject to persecution on account of race, religion, or political 
opinion, the Secretary of Homeland Security may waive the requirement of 
such two-year foreign residence abroad in the case of any alien whose 
admission to the United States is found by the Secretary of Homeland 
Security to be in the public interest except that in the case of a 
waiver requested by a State Department of Public Health, or its 
equivalent, the waiver shall be subject to the requirements of section 
214(l) of the Immigration and Nationality Act (8 U.S.C. 1184).
    (3) Except in the case of an alien who is a graduate of a foreign 
medical school pursuing a program in graduate medical education or 
training, the Secretary of Homeland Security, upon the favorable 
recommendation of the Secretary of State, may also waive such two-year 
foreign residence requirement in any case in which the foreign country 
of the alien's nationality or last legal permanent residence has 
furnished the Secretary of State a statement in writing that it has no 
objection to such waiver in the case of such alien. Notwithstanding the 
foregoing,

[[Page 177]]

an alien who is a graduate of a foreign medical school pursuing a 
program in graduate medical education or training may obtain a waiver of 
such two-year foreign residence requirements if said alien meets the 
requirements of section 214(l) of the Immigration and Nationality Act (8 
U.S.C. 1184) and paragraphs (a) (2) and (e) of this section.
    (b) Request for waiver on the basis of exceptional hardship or 
probable persecution on account of race, religion, or political opinion. 
(1) An exchange visitor who seeks a waiver of the two-year home-country 
residence and physical presence requirement on the grounds that such 
requirement would impose exceptional hardship upon the exchange 
visitor's spouse or child (if such spouse or child is a citizen of the 
United States or a legal permanent resident alien), or on the grounds 
that such requirement would subject the exchange visitor to persecution 
on account of race, religion, or political opinion, shall submit the 
application for waiver (DHS Form I-612) to the jurisdictional office of 
the Department of Homeland Security.
    (2)(i) If the Secretary of Homeland Security (Secretary of DHS) 
determines that compliance with the two-year home-country residence and 
physical presence requirement would impose exceptional hardship upon the 
spouse or child of the exchange visitor, or would subject the exchange 
visitor to persecution on account of race, religion, or political 
opinion, the Secretary of DHS shall transmit a copy of his determination 
together with a summary of the details of the expected hardship or 
persecution, to the Waiver Review Division, in the Department of State's 
Bureau of Consular Affairs.
    (ii) With respect to those cases in which the Secretary of DHS has 
determined that compliance with the two-year home-country residence and 
physical presence requirement would impose exceptional hardship upon the 
spouse or child of the exchange visitor, the Waiver Review Division 
shall review the program, policy, and foreign relations aspects of the 
case, make a recommendation, and forward it to the appropriate office at 
DHS. If it deems it appropriate, the Waiver Review Division may request 
the views of each of the exchange visitors' sponsors concerning the 
waiver application. Except as set forth in paragraph (g)(4) of this 
section, the recommendation of the Waiver Review Division shall 
constitute the recommendation of the Department of State.
    (iii) With respect to those cases in which the Secretary of DHS has 
determined that compliance with the two-year home-country residence and 
physical presence requirement would subject the exchange visitor to 
persecution on account of race, religion, or political opinion, the 
Waiver Review Division shall review the program, policy, and foreign 
relations aspects of the case, including consultation if deemed 
appropriate with the Bureau of Human Rights and Humanitarian Affairs of 
the United States Department of State, make a recommendation, and 
forward such recommendation to the Secretary of DHS. Except as set forth 
in paragraph (g)(4) of this section, the recommendation of the Waiver 
Review Division shall constitute the recommendation of the Department of 
State and such recommendation shall be forwarded to DHS.
    (c) Requests for waiver made by an interested United States 
Government Department of State. (1) A United States Government agency 
may request a waiver of the two-year home-country residence and physical 
presence requirement on behalf of an exchange visitor if such exchange 
visitor is actively and substantially involved in a program or activity 
sponsored by or of interest to such agency.
    (2) A United States Government agency requesting a waiver shall 
submit its request in writing and fully explain why the grant of such 
waiver request would be in the public interest and the detrimental 
effect that would result to the program or activity of interest to the 
requesting agency if the exchange visitor is unable to continue his or 
her involvement with the program or activity.
    (3) A request by a United States Government agency shall be signed 
by the head of the agency, or his or her designee, and shall include 
copies of all IAP 66 or DS-2019 forms issued to the

[[Page 178]]

exchange visitor, his or her current address, and his or her country of 
nationality or last legal permanent residence.
    (4) A request by a United States Government agency, excepting the 
Department of Veterans Affairs, on behalf of an exchange visitor who is 
a foreign medical graduate who entered the United States to pursue 
graduate medical education or training, and who is willing to provide 
primary care or specialty medicine in a designated primary care Health 
Professional shortage Area, or a Medically Underserved Area, or 
psychiatric care in a Mental Health Professional Shortage Area, shall, 
in additional to the requirement set forth in paragraphs (c)(2) and (3) 
of this section, include:
    (i) A copy of the employment contract between the foreign medical 
graduate and the health care facility at which he or she will be 
employed. Such contract shall specify a term of employment of not less 
than three years and that the foreign medical graduate is to be employed 
by the facility for the purpose of providing not less than 40 hours per 
week of primary medical care, i.e., general or family practice, general 
internal medicine, pediatrics, or obstetrics and gynecology, in a 
designated primary care Health Professional Shortage Area or designated 
Medically Underserved Area (``MUA'') or psychiatric care in a designated 
Mental Health Professional Shortage Area. Further, such employment 
contract shall not include a non-compete clause enforceable against the 
foreign medical graduate.
    (ii) A statement, signed and dated by the head of the health care 
facility at which the foreign medical graduate will be employed, that 
the facility is located in an area designated by the Secretary of Health 
and Human Services as a Medically Underserved Area or Primary Medical 
Care Health Professional Shortage Area or Mental Health Professional 
Shortage Area and provides medical care to both Medicaid or Medicare 
eligible patients and indigent uninsured patients. The statement shall 
also list the primary care Health Professional Shortage Area, Mental 
Health Professional Shortage Area, or Medically Underserved Area/
Population identifier number of the designation (assigned by the 
Secretary of Health and Human Services), and shall include the FIPS 
county code and census tract or block numbering area number (assigned by 
the Bureau of the Census) or the 9-digit zipcode of the area where the 
facility is located.
    (iii) A statement, signed and dated by the foreign medical graduate 
exchange visitor that shall read as follows:

    I, -------------------- (name of exchange visitor) hereby declare 
and certify, under penalty of the provisions of 18 U.S.C. 1001, that I 
do not now have pending nor am I submitting during the pendency of this 
request, another request to any United States Government department or 
agency or any State Department of Public Health, or equivalent, other 
than -------------------- (insert name of United States Government 
Agency requesting waiver) to act on my behalf in any matter relating to 
a waiver of my two-year home-country physical presence requirement.

    (iv) Evidence that unsuccessful efforts have been made to recruit an 
American physician for the position to be filled.
    (5) Except as set forth in paragraph (g)(4) of this section, the 
recommendation of the Waiver Review Division shall constitute the 
recommendation of the Department of State and such recommendation shall 
be forwarded to the Secretary of DHS.
    (d) Requests for waiver made on the basis of a statement from the 
exchange visitor's home-country that it has no objection to the waiver. 
(1) Applications for waiver of the two-year home-country residence and 
physical presence requirement may be supported by a statement of no 
objection by the exchange visitor's country of nationality or last legal 
permanent residence. The statement of no objection shall be directed to 
the Secretary of State through diplomatic channels; i.e., from the 
country's Foreign Office to the Department of State through the U.S. 
Mission in the foreign country concerned, or through the foreign 
country's head of mission or duly appointed designee in the United 
States to the Secretary of State in the form of a diplomatic note. This 
note shall include applicant's full name, date and place of birth, and 
present address. If deemed appropriate, the Department of State may 
request the views of each of the

[[Page 179]]

exchange visitor's sponsors concerning the waiver application.
    (2) The Waiver Review Division shall review the program, policy, and 
foreign relations aspects of the case and forward its recommendation to 
the Secretary of DHS. Except as set forth in Sec. 41.63(g)(4), infra, 
the recommendation of the Waiver Review Division shall constitute the 
recommendation of the Department of State.
    (3) An exchange visitor who is a graduate of a foreign medical 
school and who is pursuing a program in graduate medical education or 
training in the United States is prohibited under section 212(e) of the 
Immigration and Nationality Act from applying for a waiver solely on the 
basis of no objection from his or her country of nationality or last 
legal permanent residence. However, an alien who is a graduate of a 
foreign medical school pursuing a program in graduate medical education 
or training may obtain a waiver of such two-year foreign residence 
requirements if said alien meets the requirements of section 214(l) of 
the Immigration and Nationality Act (8 U.S.C. 1184) and paragraphs 
(a)(2) and (e) of this section.
    (e) Requests for waiver from a State Department of Public Health, or 
its equivalent, on the basis of Public Law 103-416. (1) Pursuant to 
Public Law 103-416, in the case of an alien who is a graduate of a 
medical school pursuing a program in graduate medical education or 
training, a request for a waiver of the two-year home-country residence 
and physical presence requirement may be made by a State department of 
Public Health, or its equivalent. Such waiver shall be subject to the 
requirements of section 214(l) of the Immigration and Nationality Act (8 
U.S.C. 1194(l)) and this Sec. 41.63.
    (2) With respect to such waiver under Public Law 104-416, if such 
alien is contractually obligated to return to his or her home country 
upon completion of the graduate medical education or training, the 
Secretary of State is to be furnished with a statement in writing that 
the country to which such alien is required to return has no objection 
to such waiver. The no objection statement shall be furnished to the 
Secretary of State in the manner and form set forth in paragraph (d) of 
this section and, additionally, shall bear a notation that it is being 
furnished pursuant to Public Law 103-416.
    (3) The State Department of Public Health, or equivalent agency, 
shall include in the waiver application the following:
    (i) A completed DS-3035. Copies of these forms may be obtained from 
the Visa Office or online at http://www.travel.state.gov.
    (ii) A letter from the Director of the designated State Department 
of Public Health, or its equivalent, which identifies the foreign 
medical graduate by name, country of nationality or country of last 
legal permanent residence, and date of birth, and states that it is in 
the public interest that a waiver of the two-year home residence 
requirement be granted;
    (iii) An employment contract between the foreign medical graduate 
and the health care facility named in the waiver application, to include 
the name and address of the health care facility, and the specific 
geographical area or areas in which the foreign medical graduate will 
practice medicine. The employment contract shall include a statement by 
the foreign medical graduate that he or she agrees to meet the 
requirements set forth in section 214(l) of the Immigration and 
Nationality Act. The term of the employment contract shall be at least 
three years and the geographical areas of employment shall only be in 
areas, within the respective state, designated by the Secretary of 
Health and Human Services as having a shortage of health care 
professionals, unless the waiver request is for an alien who will 
practice medicine in a facility that serves patients who reside in one 
or more geographic areas so designated by the Secretary of Health and 
Human Services without regard to whether such facility is located within 
such a designated geographic area. For the latter situation, which will 
be referred to as ``non-designated requests'', the contract should also 
state that the term of the employment contract shall be at least three 
years and employment shall only be in a facility that serves patients 
who reside in one or more geographic areas so designed by the Secretary 
of Health and

[[Page 180]]

Human Services as having a shortage of health care professionals.
    (iv) Evidence establishing that the geographic area or areas in the 
state in which the foreign medical graduate will practice medicine or 
where patients who will be served by the foreign medical graduates 
reside, are areas which have been designated by the Secretary of Health 
and Human Services as having a shortage of health care professionals. 
For purposes of this paragraph, the geographic area or areas must be 
designated by the Department of Health and Human Services as a Health 
Professional Shortage Area (``HPSA'') or as a Medically Underserved 
Area/Medically Underserved Population (``MUA/MUP'').
    (v) Copies of all forms IAP 66 or DS-2019 issued to the foreign 
medical graduate seeking the waiver;
    (vi) A copy of the foreign medical graduate's curriculum vitae;
    (vii) If the foreign medical graduate is otherwise contractually 
required to return to his or her home country at the conclusion of the 
graduate medical education or training, a copy of the statement of no 
objection from the foreign medical graduate's country of nationality or 
last residence; and,
    (viii) Because of the numerical limitations on the approval of 
waivers under Public Law 103-416, i.e., no more than the maximum number 
of waivers for each State each fiscal year as mandated by law, each 
application from a State Department of Public Health, or its equivalent, 
shall be numbered sequentially, beginning on October 1 of each year. The 
``non-designated'' requests will also be numbered sequentially with 
appropriate identifier.
    (4) The Waiver Review Division shall review the program, policy, and 
foreign relations aspects of the case and forward its recommendation to 
the Secretary of DHS. Except as set forth in paragraph (g)(4) of this 
section, the recommendation of the Waiver Review Division shall 
constitute the recommendation of the Department of State.
    (f) Changed circumstances. An applicant for a waiver on the grounds 
of exceptional hardship or probable persecution on account of race, 
religion, or political opinion, has a continuing obligation to inform 
the Department of Homeland Security of changed circumstances material to 
his or her pending application.
    (g) The Waiver Review Board. (1) The Waiver Review Board (``Board'') 
shall consist of the following persons or their designees:
    (i) The Principal Deputy Assistant Secretary of the Bureau of 
Consular Affairs;
    (ii) The Director of Office of Public Affairs for the Bureau of 
Consular Affairs;
    (iii) The Legislative Management Officer for Consular Affairs, 
Bureau of Legislative Affairs;
    (iv) The Director of the Office of Exchange Coordination and 
Designation in the Bureau of Educational and Cultural Affairs; and
    (v) The Director of the Office of Policy and Evaluation in the 
Bureau of Educational and Cultural Affairs.
    (2) A person who has had substantial prior involvement in a 
particular case referred to the Board may not be appointed to, or serve 
on, the Board for that particular case unless the Bureau of Consular 
Affairs determines that the individual's inclusion on the Board is 
otherwise necessary or practicably unavoidable.
    (3) The Principal Deputy Assistant Secretary of Consular Affairs, or 
his or her designee, shall serve as Board Chairman. No designee under 
this paragraph (g)(3) shall serve for more than 2 years.
    (4) Cases will be referred to the Board at the discretion of the 
Chief, Waiver Review Division, of the Visa Office. The Chief, Waiver 
Review Division, or his or her designee may, at the Chairman's 
discretion, appear and present facts related to the case but shall not 
participate in Board deliberations.
    (5) The Chairman of the Board shall be responsible for convening the 
Board and distributing all necessary information to its members. Upon 
being convened, the Board shall review the case file and weigh the 
request against the program, policy, and foreign relations aspects of 
the case.
    (6) The Bureau of Consular Affairs shall appoint, on a case-by-case 
basis, from among the attorneys in the State Department's Office of 
Legal Advisor

[[Page 181]]

one attorney to serve as legal advisor to the Board.
    (7) At the conclusion of its review of the case, the Board shall 
make a written recommendation either to grant or to deny the waiver 
application. The written recommendation of a majority of the Board shall 
constitute the recommendation of the Board. Such recommendation shall be 
promptly transmitted by the Chairman to the Chief, Waiver Review 
Division.
    (8) At the conclusion of its review of the case, the Board shall 
make a written recommendation either to grant or to deny the waiver 
application. The written recommendation of a majority of the Board shall 
constitute the recommendation of the Board. Such recommendation shall be 
promptly transmitted by the Chairman to the Chief, Waiver Review 
Division.

[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]



                        Subpart H_Transit Aliens



Sec. 41.71  Transit aliens.

    (a) Transit aliens--general. An alien is classifiable as a 
nonimmigrant transit alien under INA 101(a) (15) (C) if the consular 
officer is satisfied that the alien:
    (1) Intends to pass in immediate and continuous transit through the 
United States;
    (2) Is in possession of a common carrier ticket or other evidence of 
transportation arrangements to the alien's destination;
    (3) Is in possession of sufficient funds to carry out the purpose of 
the transit journey, or has sufficient funds otherwise available for 
that purpose; and
    (4) Has permission to enter some country other than the United 
States following the transit through the United States, unless the alien 
submits satisfactory evidence that such advance permission is not 
required.
    (b) Certain aliens in transit to United Nations. An alien within the 
provisions of paragraph (3), (4), or (5) of section 11 of the 
Headquarters Agreement with the United Nations, to whom a visa is to be 
issued for the purpose of applying for admission solely in transit to 
the United Nations Headquarters District, may upon request or at the 
direction of the Secretary of State be issued a nonimmigrant visa 
bearing the symbol C-2. If such a visa is issued, the recipient shall be 
subject to such restrictions on travel within the United States as may 
be provided in regulations prescribed by the Secretary of Homeland 
Security.



              Subpart I_Fiance(e)s and Other Nonimmigrants



Sec. 41.81  Fianc[eacute](e) or spouse of a U.S. citizen and derivative 

children.

    (a) Fianc[eacute](e). An alien is classifiable as a nonimmigrant 
fianc[eacute](e) under INA 101(a)(15)(K)(i) if:
    (1) The consular officer is satisfied that the alien is qualified 
under that provision and the consular officer has received a petition 
filed by a U.S. citizen to confer nonimmigrant status as a 
fianc[eacute](e) on the alien, which has been approved by the DHS under 
INA 214(d), or a notification of such approval from that Service;
    (2) The consular officer has received from the alien the alien's 
sworn statement of ability and intent to conclude a valid marriage with 
the petitioner within 90 days of arrival in the United States; and
    (3) The alien has met all other qualifications in order to receive a 
nonimmigrant visa, including the requirements of paragraph (d) of this 
section.
    (b) Spouse. An alien is classifiable as a nonimmigrant spouse under 
INA 101(a)(15)(K)(ii) when all of the following requirements are met:
    (1) The consular officer is satisfied that the alien is qualified 
under that provision and the consular officer has received a petition 
approved by the DHS pursuant to INA 214(p)(1), that was filed by the 
U.S. citizen spouse of the alien in the United States.
    (2) If the alien's marriage to the U.S. citizen was contracted 
outside of the United States, the alien is applying in the country in 
which the marriage took place, or if there is no consular post in that 
country, then at a consular post designated by the Deputy

[[Page 182]]

Assistant Secretary of State for Visa Services to accept immigrant visa 
applications for nationals of that country.
    (3) If the marriage was contracted in the United States, the alien 
is applying in a country as provided in part 42, Sec. 42.61 of this 
chapter.
    (4) The alien otherwise has met all applicable requirements in order 
to receive a nonimmigrant visa, including the requirements of paragraph 
(d) of this section.
    (c) Child. An alien is classifiable under INA 101(a)(15)(K)(iii) if:
    (1) The consular officer is satisfied that the alien is the child of 
an alien classified under INA 101(a)(15)(K)(i) or (ii) and is 
accompanying or following to join the principal alien; and
    (2) The alien otherwise has met all other applicable requirements in 
order to receive a nonimmigrant visa, including the requirements of 
paragraph (d) of this section.
    (d) Eligibility as an immigrant required. The consular officer, 
insofar as is practicable, must determine the eligibility of an alien to 
receive a nonimmigrant visa under paragraphs (a), (b) or (c) of this 
section as if the alien were an applicant for an immigrant visa, except 
that the alien must be exempt from the vaccination requirement of INA 
212(a)(1) and the labor certification requirement of INA 212(a)(5).

[66 FR 19393, Apr. 16, 2001]



Sec. 41.82  Certain parents and children of section 101(a)(27)(I) special 

immigrants. [Reserved]



Sec. 41.83  Certain witnesses and informants.

    (a) General. An alien shall be classifiable under the provisions of 
INA 101(a)(15)(S) if:
    (1) The consular officer is satisfied that the alien qualifies under 
the provisions of that section; and
    (2)(i) The consular officer has received verification from the 
Department of State, Visa Office, that:
    (A) in the case of INA 101(a)(15)(S)(i) the DHS has certified that 
the alien is accorded such classification, or
    (B) in the case of INA 101(a)(15)(S)(ii) the Assistant Secretary of 
State for Consular Affairs on behalf of the Secretary of State and the 
DHS have certified that the alien is accorded such classification;
    (ii) and the alien is granted an INA 212(d)(1) waiver of any INA 
212(a) ground of ineligibility known at the time of verification.
    (b) Certification of S visa status. The certification of status 
under INA 101(a)(15)(S)(i) by the Secretary of Homeland Security or of 
status under INA 101(a)(15)(S)(ii) by the Secretary of State and the 
Secretary of Homeland Security acting jointly does not establish that 
the alien is eligible to receive a nonimmigrant visa.
    (c) Validity of visa. The period of validity of a visa authorized on 
the basis of paragraph (a) of this section shall not exceed the period 
indicated in the certification required in paragraph (b) and shall not 
in any case exceed the period of three years.

[61 FR 1838, Jan. 24, 1996, as amended at 71 FR 34521, June 15, 2006]



Sec. 41.84  Victims of trafficking in persons.

    (a) Eligibility. An alien may be classifiable as a parent, spouse or 
child under INA 101(a)(15)(T)(ii) if:
    (1) The consular officer is satisfied that the alien has the 
required relationship to an alien who has been granted status by the 
Secretary for Homeland Security under INA 101(a)(15)(T)(i);
    (2) The consular officer is satisfied that the alien is otherwise 
admissible under the immigration laws of the United States; and
    (3) The consular officer has received an DHS-approved I-914, 
Supplement A, evidencing that the alien is the spouse, child, or parent 
of an alien who has been granted status under INA 101(a)(15)(T)(i).
    (b) Visa validity. A qualifying family member may apply for a 
nonimmigrant visa under INA(a)(15)(T)(ii) only during the period in 
which the principal applicant is in status under INA 101(a)(15)(T)(i). 
Any visa issued pursuant to such application shall be valid only for a 
period of three years or until the expiration of the principal alien's

[[Page 183]]

status as an alien classified under INA 101(a)(15)(T)(i), whichever is 
shorter.

[68 FR 37964, June 26, 2003]



Sec. 41.86  Certain spouses and children of lawful permanent resident aliens.

    (a) Definition of ``remains pending''. For the purposes of this 
section, a visa application ``remains pending'' if the applicant has 
applied for an immigrant visa in accordance with the definition in part 
40, Sec. 40.1(l)(2) and the visa has neither been issued, nor refused 
for any reason under applicable law and regulation.
    (b) Entitlement to classification. A consular officer may classify 
an alien as a nonimmigrant under INA 101(a)(15)(V) if:
    (1) The consular officer has received notification from the 
Department of State or the Department of Justice that a petition to 
accord status to the alien as a spouse or child pursuant to INA 
203(a)(2)(A) was filed on or before December 21, 2000; or
    (2) The alien is eligible to derive benefits pursuant to INA 203(d) 
as a child of an alien described in paragraph (b)(1) of this section and 
such alien has qualified for V classification; and
    (3) It has been three years or more since the filing date of the 
petition described in paragraph (b)(1) of this section and applicable to 
paragraph (b)(2) of this section and either:
    (i) The petition has not been approved; or
    (ii) If it has been approved, either no immigrant visa number is 
immediately available or the alien's application for adjustment of 
status or the alien's application for a visa remains pending.
    (c) Eligibility as an immigrant required. The consular officer, 
insofar as practicable, must determine the eligibility of an alien 
described in paragraph (b) of this section to receive a nonimmigrant 
visa under INA 101(a)(15)(V), other than an alien who previously has 
been granted V status in the United States by DHS, as if the alien were 
an applicant for an immigrant visa, except that the alien is exempt from 
the vaccination requirement of INA 212(a)(1), the labor certification 
requirement of INA 212(a)(5) and the unlawful presence ineligibility of 
INA 212(a)(9)(B).
    (d) Place of application. Notwithstanding the requirements of Sec. 
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, 
Sec. Sec. 42.61(a) and (b)(1) of this chapter will apply.

[66 FR 19393, Apr. 16, 2001]



               Subpart J_Application for Nonimmigrant Visa



Sec. 41.101  Place of application.

    (a) Application for regular visa made at jurisdictional consular 
office of alien's residence or physical presence. (1) An alien applying 
for a nonimmigrant visa shall make application at a consular office 
having jurisdiction over the alien's place of residence, or if the alien 
is a resident of Taiwan, at the American Institute in Taiwan, unless--
    (i) The alien is physically present in the United States and is 
entitled to apply for issuance or reissuance of a visa under the 
provisions of Sec. 41.111(b); or
    (ii) A consular office having jurisdiction over the area in which 
the alien is physically present but not resident has agreed, as a matter 
of discretion or at the direction of the Department, to accept the 
alien's application; or
    (iii) The alien is subject to INA 222(g) and must apply as set forth 
in paragraph (b) or (c) of this section.
    (2) The Deputy Assistant Secretary of State for Visa Services is 
authorized to designate the geographical area for which each consular 
office possesses jurisdiction to process nonimmigrant visa applications.
    (b) Place of application for persons subject to INA 222(g). 
Notwithstanding the requirements of paragraph (a) of this section, an 
alien whose prior nonimmigrant visa has been voided pursuant to INA 
222(g), who is applying for a new nonimmigrant visa, shall make 
application at a consular office which has jurisdiction in or for the 
country of the alien's nationality unless extraordinary circumstances 
have been determined to exist with respect to that alien as set forth in 
paragraph (c) of this section.
    (c) Exceptions based on extraordinary circumstances. (1) An alien 
physician

[[Page 184]]

serving in underserved areas of the United States under the provisions 
of INA 214(l) for whom an application for a waiver of the 2-year foreign 
residence requirement and/or a petition to accord H-1B status was filed 
prior to the end of the alien's authorized period of stay and was 
subsequently approved, but whose authorized stay expired during the 
adjudication of such application(s), shall make application in 
accordance with paragraph (a) of this section.
    (2) Any other individual or group whose circumstances are determined 
to be extraordinary, in accordance with paragraph (d)(1) of this 
section, by the Deputy Assistant Secretary for Visa Services upon the 
favorable recommendation of an immigration or consular officer, shall 
make application in accordance with paragraph (a) of this section.
    (3) An alien who has, or immediately prior to the alien's last entry 
into the United States had, a residence in a country other than the 
country of the alien's nationality shall apply at a consular office with 
jurisdiction in or for the country of residence.
    (4) An alien who is a national and resident of a country in which 
there is no United States consular office shall apply at a consular 
office designated by the Deputy Assistant Secretary for Visa Services to 
accept immigrant visa applications from persons of that nationality.
    (5) An alien who possesses more than one nationality and who has, or 
immediately prior to the alien's last entry into the United States had, 
a residence in one of the countries of the alien's nationality shall 
apply at a consular office in the country of such residence.
    (d) Definitions relevant to INA 222(g). (1) Extraordinary 
circumstances--Extraordinary circumstances may be found where compelling 
humanitarian or national interests exist or where necessary for the 
effective administration of the immigration laws. Extraordinary 
circumstances shall not be found upon the basis of convenience or 
financial burden to the alien, the alien's relative, or the alien's 
employer.
    (2) Nationality--For purposes of paragraph (b) of this section, a 
stateless person shall be considered to be a national of the country 
which issued the alien's travel document.
    (e) Regular visa defined. ``Regular visa'' means a nonimmigrant visa 
of any classification which does not bear the title ``Diplomatic'' or 
``Official.'' A nonimmigrant visa is issued as a regular visa unless the 
alien falls within one of the classes entitled to a diplomatic or an 
official visa as described in Sec. 41.26(c) or Sec. 41.27(c).
    (f) Q-2 nonimmigrant visas. 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.

[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]



Sec. 41.102  Personal appearance of applicant.

    (a) Personal 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:
    (1) The proper nonimmigrant classification, if any, of the alien; 
and
    (2) The alien's eligibility to receive a visa.

[[Page 185]]

    (b) Waivers of personal appearance by consular officers. 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:
    (1) Is a child under 14 years of age;
    (2) Is a person over 79 years of age;
    (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;
    (4) Is an applicant for a diplomatic or official visa as described 
in Sec. Sec. 41.26 or 41.27 of this chapter, respectively;
    (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
    (6) Is an alien for whom a waiver of personal appearance is 
warranted in the national interest or because of unusual circumstances.
    (c) Waivers of personal appearance by the Deputy Assistant Secretary 
of State. 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.
    (d) Cases in which personal appearance may not be waived. A consular 
officer or the Deputy Assistant Secretary of State may not waive 
personal appearance for:
    (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.
    (2) Any NIV applicant who was previously refused a visa, is listed 
in CLASS, or who otherwise requires a Security Advisory Opinion, unless:
    (i) The visa was refused temporarily and the refusal was 
subsequently overcome;
    (ii) The alien was found inadmissible, but the inadmissibility was 
waived; or
    (iii) The applicant is eligible for a waiver of the interview under 
paragraphs (b)(3) or (b)(4) of this section.
    (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.
    (e) Unusual circumstances. As used in this section, unusual 
circumstances shall include, but not be limited to, an emergency or 
unusual hardship.

[68 FR 40128, July 7, 2003, as amended at 71 FR 75663, Dec. 18, 2006]



Sec. 41.103  Filing an application.

    (a) Filing an application--(1) Filing of application required. Every 
alien seeking a nonimmigrant visa must make an electronic application on 
Form DS-160 or, as directed by a consular officer, an application on 
Form DS-156. The Form DS-160 must be signed electronically by clicking 
the box designated ``Sign Application'' in the certification section of 
the application.
    (2) Filing of an electronic application (Form DS-160) or Form DS-156 
by alien under 16 or physically incapable. The application for an alien 
under 16 years of age or one physically incapable of completing an 
application may be completed and executed by the alien's parent or 
guardian, or if the alien has no parent or guardian, by any person 
having legal custody of, or a legitimate interest in, the alien.
    (3) Waiver of filing of application when personal appearance is 
waived. Even if

[[Page 186]]

personal appearance of a visa applicant is waived pursuant to 22 CFR 
41.102, the requirement for filing an application is not waived.
    (b) Application--(1) Preparation of Electronic Nonimmigrant Visa 
Application (Form DS-160) or, alternatively, Form DS-156. The consular 
officer shall ensure that the application is fully and properly 
completed in accordance with the applicable regulations and 
instructions.
    (2) Additional requirements and information as part of application. 
Applicants who are required to appear for a personal interview must 
provide a biometric, which will serve to authenticate identity and 
additionally verify the accuracy and truthfulness of the statements in 
the application at the time of interview. The consular officer may 
require the submission of additional necessary information or question 
an alien on any relevant matter whenever the consular officer believes 
that the information provided in the application is inadequate to permit 
a determination of the alien's eligibility to receive a nonimmigrant 
visa. Additional statements made by the alien become a part of the visa 
application. All documents required by the consular officer under the 
authority of Sec. 41.105(a) are considered papers submitted with the 
alien's application within the meaning of INA 221(g)(1).
    (3) Signature. The Form DS-160 shall be signed electronically by 
clicking the box designated ``Sign Application'' in the certification 
section of the application. This electronic signature attests to the 
applicant's familiarity with and intent to be bound by all statements in 
the NIV application under penalty of perjury. Alternatively, except as 
provided in paragraph (a)(2) of this section, the Form DS-156 shall be 
signed by the applicant, with intent to be bound by all statement in the 
NIV application under penalty of perjury.
    (4) Registration. The Form DS-160 or the Form DS-156, when duly 
executed, constitutes the alien's registration for the purposes of INA 
221(b).

[73 FR 23068, Apr. 29, 2008]



Sec. 41.104  Passport requirements.

    (a) Passports defined. ``Passport'' as defined in INA 101(a)(30) is 
not limited to a national passport or to a single document. A passport 
may consist of two or more documents which, when considered together, 
fulfill the requirements of a passport, provided that the documentary 
evidence of permission to enter a foreign country has been issued by a 
competent authority and clearly meets the requirements of INA 
101(a)(30).
    (b) Passport requirement. Except for certain persons in the A, C-3, 
G, and NATO classifications and persons for whom the passport 
requirement has been waived pursuant to the provisions of INA 212(d)(4), 
every applicant for a nonimmigrant visa is required to present a 
passport, as defined above and in INA 101(a)(30), which is valid for the 
period required by INA 212(a)(7)(B)(i)(I).
    (c) A single passport including more than one person. The passport 
requirement for a nonimmigrant visa may be met by the presentation of a 
passport including more than one person, if such inclusion is authorized 
under the laws or regulations of the issuing authority and if a 
photograph of each visa applicant 16 years of age or over has been 
attached to the passport by the issuing authority.
    (d) Applicants for diplomatic visas. Every applicant for a 
diplomatic visa must present a diplomatic passport, or the equivalent 
thereof, having the period of validity required by INA 
212(a)(7)(B)(i)(I), unless such requirement has been waived pursuant to 
the authority contained in INA 212(d)(4) or unless the case falls within 
the provisions of Sec. 41.21(b).

[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]



Sec. 41.105  Supporting documents and fingerprinting.

    (a) Supporting documents--(1) Authority to require documents. The 
consular officer is authorized to require documents considered necessary 
to establish the alien's eligibility to receive a nonimmigrant visa. All 
documents and other evidence presented by the alien, including briefs 
submitted by attorneys or other representatives, shall be considered by 
the consular officer.

[[Page 187]]

    (2) Unobtainable documents. If the consular officer is satisfied 
that a document or record required under the authority of this section 
is unobtainable, the consular officer may accept satisfactory 
alternative pertinent evidence. A document or other record shall be 
considered unobtainable if it cannot be procured without causing the 
applicant or a member of the applicant's family actual hardship as 
distinct from normal delay and inconvenience.
    (3) Photographs required. Every applicant for a nonimmigrant visa 
must furnish a photograph in such numbers as the consular officer may 
require. Photographs must be a reasonable likeness, 1\1/2\ by 1\1/2\ 
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.
    (4) Police certificates. A police certificate is a certification by 
the police or other appropriate authorities stating what, if anything, 
their records show concerning the alien. An applicant for a nonimmigrant 
visa is required to present a police certificate if the consular officer 
has reason to believe that a police or criminal record exists, except 
that no police certificate is required in the case of an alien who is 
within a class of nonimmigrants classifiable under visa symbols A-1, A-
2, C-3, G-1 through G-4, NATO-1 through NATO-4 or NATO-6.
    (b) Fingerprinting. Every applicant for a nonimmigrant visa must 
furnish fingerprints, as required by the consular officer.

[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]



Sec. 41.106  Processing.

    Consular officers must ensure that the Form DS-160 or, 
alternatively, Form DS-156 is properly and promptly processed in 
accordance with the applicable regulations and instructions.

[73 FR 23069, Apr. 29, 2008]



Sec. 41.107  Visa fees.

    (a) Fees based on reciprocity. The fees for the issuance of visas, 
including official visas, to nonimmigrant nationals or stateless 
residents of each foreign country shall be collected in the amounts 
prescribed by the Secretary of State unless, on the basis of 
reciprocity, no fee is chargeable. If practicable, fees will correspond 
to the total amount of all visa, entry, residence, or other similar 
fees, taxes or charges assessed or levied against nationals of the 
United States by the foreign countries of which such nonimmigrants are 
nationals or stateless residents.
    (b) Fees when more than one alien included in visa. A single 
nonimmigrant visa may be issued to include all eligible family members 
if the spouse and unmarried minor children of a principal alien are 
included in one passport. Each alien must execute a separate 
application. The name of each family member shall be inserted in the 
space provided in the visa stamp. The visa fee to be collected shall 
equal the total of the fees prescribed by the Secretary of State for 
each alien included in the visa, unless upon a basis of reciprocity a 
lesser fee is chargeable.
    (c) Certain aliens exempted from fees. (1) Upon a basis of 
reciprocity, or as provided in section 13(a) of the Headquarters 
Agreement with the United Nations (61 Stat. 716; 22 U.S.C. 287, Note), 
no fee shall be collected for the application for or issuance of a 
nonimmigrant visa to an alien who is within a class of nonimmigrants 
classifiable under the visa symbols A, G, C-2, C-3, or NATO, or B-1 
issued for participation in an official observer mission to the United 
Nations, or who is issued a diplomatic visa as defined in Sec. 41.26.
    (2) The consular officer shall waive the nonimmigrant visa 
application and issuance fees for an alien who will be engaging in 
charitable activities for a charitable organization upon the written 
request of the charitable organization claiming that it will find the 
fees a financial burden, if the consular officer is satisfied that:

[[Page 188]]

    (i) The organization seeking relief from the fees is, if based in 
the United States, tax-exempt as a charitable organization under the 
provisions of section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 
501(c)(3)); if a foreign organization based outside the United States in 
a country having laws according recognition to charitable institutions, 
that it establishes that it is recognized as a charitable institution by 
that government; and if a foreign organization based in a country 
without such laws, that it is engaged in activities substantially 
similar to those underlying section 501(c)(3), and
    (ii) The charitable activities in which the alien will engage are 
specified and will be a part of, or will be related to and in support 
of, the organization's provision of services, including but not limited 
to health care, food and housing, job training, and similar direct 
services and assistance to the poor and needy, and
    (iii) The request includes the location of the proposed activities, 
the number and identifying data of each of the alien(s) who will be 
applying for visas, and
    (iv) The proposed duration of the alien(s)'s temporary stay in the 
United States is reasonably consistent with the charitable purpose for 
which the alien(s) seek to enter the United States.
    (3) Foreign national employees of the U. S. Government who are 
travelling to the United States on official business in connection with 
that employment.
    (d) Refund of fees. A fee collected for the issuance of a 
nonimmigrant visa is refundable only if the principal officer at a post 
or the officer in charge of a consular section determines that the visa 
was issued in error or could not be used as a result of action taken by 
the U.S. Government for which the alien was not responsible and over 
which the alien had no control.
    (e)(1) Visa processing surcharge. In addition to the collection of 
the fee prescribed in paragraph (a) of this section, a consular officer 
shall collect or ensure the collection of a surcharge for the processing 
of applications for machine readable nonimmigrant visas and for machine 
readable combined border crossing cards in the amount specified by the 
Secretary of State from such applicants as the Secretary of State shall 
designate. Such surcharge is refundable only if, as a result of action 
taken by the U.S. Goverment for which the alien was not responsible and 
over which the alien had no control, the alien's application is not 
processed.
    (2) Notwithstanding paragraph (e)(1) of this section, a consular 
officer shall collect or insure the collection of a processing fee for a 
machine-readable combined border crossing card and nonimmigrant visa in 
an amount determined by the Secretary and set forth in 22 CFR 22.1 to be 
sufficient only to cover the cost for manufacturing the combined card 
and visa if:
    (i) The alien is a Mexican citizen under the age of 15;
    (ii) The alien is applying in Mexico; and
    (iii) The alien has at least one parent or guardian who has a visa 
or is applying for a machine-readable combined border crossing card and 
visa.

[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]



Sec. 41.108  Medical examination.

    (a) Requirements for medical examination. An applicant for a 
nonimmigrant visa shall be required to take a medical examination if:
    (1) The alien is an applicant for a K nonimmigrant visa as a 
fiance(e) of a U.S. citizen or as the child of such an applicant; or,
    (2) The alien is seeking admission for medical treatment and the 
consular officer considers a medical examination advisable; or,
    (3) The consular officer has reason to believe that a medical 
examination might disclose that the alien is medically ineligible to 
receive a visa.
    (b) Examination by panel physician. The required examination, which 
must be carried out in accordance with United States Public Health 
Service regulations, shall be conducted by a physician selected by the 
alien from a panel of physicians approved by the consular officer or, if 
the alien is in the United States, by a medical officer of

[[Page 189]]

the United States Public Health Service or by a contract physician from 
a list of physicians approved by the DHS for the examination of INA 245 
adjustment of status applicants.
    (c) Panel physician facility requirements. A consular officer may 
not include the name of a physician on the panel of physicians referred 
to in paragraph (b) of this section unless the physician has facilities 
to perform required serological and X-ray tests or is in a position to 
refer applicants to a qualified laboratory for such tests.



                 Subpart K_Issuance of Nonimmigrant Visa



Sec. 41.111  Authority to issue visa.

    (a) Issuance outside the United States. Any consular officer is 
authorized to issue regular and official visas. Diplomatic visas may be 
issued only by:
    (1) A consular officer attached to a U.S. diplomatic mission, if 
authorized to do so by the Chief of Mission; or
    (2) A consular officer assigned to a consular office under the 
jurisdiction of a diplomatic mission, if so authorized by the Department 
or the Chief, Deputy Chief, or Counselor for Consular Affairs of that 
mission, or, if assigned to a consular post not under the jurisdiction 
of a diplomatic mission, by the principal officer of that post.
    (b) Issuance in the United States in certain cases. The Deputy 
Assistant Secretary for Visa Services and such officers of the 
Department as the former may designate are authorized, in their 
discretion, to issue nonimmigrant visas, including diplomatic visas, to:
    (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:
    (i) They have been lawfully admitted in that status or have, after 
admission, had their classification changed to that status; and
    (ii) Their period of authorized stay in the United States in that 
status has not expired; and
    (2) Other qualified aliens who:
    (i) Are currently maintaining status in the E, H, I, L, O, or P 
nonimmigrant category;
    (ii) Intend to reenter the United States in that status after a 
temporary absence abroad; and
    (iii) Who also present evidence that:
    (A) They were previously issued visas at a consular office abroad 
and admitted to the United States in the status which they are currently 
maintaining; and
    (B) Their period of authorized admission in that status has not 
expired.

[52 FR 42597, Nov. 5, 1987, as amended at 66 FR 12738, Feb. 28, 2001]



Sec. 41.112  Validity of visa.

    (a) Significance of period of validity of visa. The period of 
validity of a nonimmigrant visa is the period during which the alien may 
use it in making application for admission. The period of visa validity 
has no relation to the period of time the immigration authorities at a 
port of entry may authorize the alien to stay in the United States.
    (b) Validity of visa and number of applications for admission. (1) 
Except as provided in paragraphs (c) and (d) of this section, a 
nonimmigrant visa shall have the validity prescribed in schedules 
provided to consular officers by the Department, reflecting insofar as 
practicable the reciprocal treatment accorded U.S. nationals, U.S. 
permanent residents, or aliens granted refugee status in the U.S. by the 
government of the country of which the alien is a national, permanent 
resident, refugee or stateless resident.
    (2) Notwithstanding paragraph (b)(1) of this section, United States 
nonimmigrant visas shall have a maximum validity period of 10 years.
    (3) An unexpired visa is valid for application for admission even if 
the passport in which the visa is stamped has expired, provided the 
alien is also in possession of a valid passport issued by the 
authorities of the country of which the alien is a national.
    (c) Limitation on validity. If warranted in an individual case, a 
consular officer may issue a nonimmigrant visa for:
    (1) A period of validity that is less than that prescribed on a 
basis of reciprocity,

[[Page 190]]

    (2) A number of applications for admission within the period of the 
validity of the visa that is less than that prescribed on a basis of 
reciprocity,
    (3) Application for admission at a specified port or at specified 
ports of entry, or
    (4) Use on and after a given date subsequent to the date of 
issuance.
    (d) Automatic extension of validity at ports of entry. (1) Provided 
that the requirements set out in paragraph (d)(2) of this section are 
fully met, the following provisions apply to nonimmigrant aliens seeking 
readmission at ports of entry:
    (i) The validity of an expired nonimmigrant visa issued under INA 
101(a)(15) may be considered to be automatically extended to the date of 
application for readmission; and
    (ii) In cases where the original nonimmigrant classification of an 
alien has been changed by DHS to another nonimmigrant classification, 
the validity of an expired or unexpired nonimmigrant visa may be 
considered to be automatically extended to the date of application for 
readmission, and the visa may be converted as necessary to that changed 
classification.
    (2) The provisions in paragraph (d)(1) of this section are 
applicable only in the case of a nonimmigrant alien who:
    (i) Is in possession of a Form I-94, Arrival-Departure Record, 
endorsed by DHS to show an unexpired period of initial admission or 
extension of stay, 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;
    (ii) Is applying for readmission after an absence not exceeding 30 
days solely in contiguous territory, or, in the case of a student or 
exchange visitor or accompanying spouse or child meeting the 
stipulations of paragraph (d)(2)(i) of this section, after an absence 
not exceeding 30 days in contiguous territory or adjacent islands other 
than Cuba;
    (iii) Has maintained and intends to resume nonimmigrant status;
    (iv) Is applying for readmission within the authorized period of 
initial admission or extension of stay;
    (v) Is in possession of a valid passport;
    (vi) Does not require authorization for admission under INA 
212(d)(3); and
    (vii) Has not applied for a new visa while abroad.
    (3) The provisions in paragraphs (d)(1) and (d)(2) of this section 
shall not apply to the nationals of countries identified as supporting 
terrorism in the Department's annual report to Congress entitled 
Patterns of Global Terrorism.

[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]



Sec. 41.113  Procedures in issuing visas.

    (a) Visa evidenced by stamp placed in passport. 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.
    (b) Cases in which visa not placed in passport. In the following 
cases the visa shall be placed on the prescribed Form DS-232. In issuing 
such a visa, a notation shall be made on the Form DS-232 on which the 
visa is placed specifying the pertinent subparagraph of this paragraph 
under which the action is taken.
    (1) The alien's passport was issued by a government with which the 
United States does not have formal diplomatic relations, unless the 
Department has specifically authorized the placing of the visa in such 
passport;
    (2) The alien's passport does not provide sufficient space for the 
visa;
    (3) The passport requirement has been waived; or

[[Page 191]]

    (4) In other cases as authorized by the Department.
    (c) Visa stamp. 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:
    (1) Full name of the applicant;
    (2) Visa type/class;
    (3) Location of the visa issuing office;
    (4) Passport number;
    (5) Sex;
    (6) Date of birth;
    (7) Nationality;
    (8) Number of applications for admission or the letter ``M'' for 
multiple entries;
    (9) Date of issuance;
    (10) Date of expiration;
    (11) Visa control number.
    (d) Insertion of name; petition and derivative status notation. (1) 
The surname and given name of the visa recipient shall be shown on the 
visa in the space provided.
    (2) If the visa is being issued upon the basis of a petition 
approved by the Secretary of Homeland Security, the number of the 
petition, if any, the period for which the alien's admission has been 
authorized, and the name of the petitioner shall be reflected in the 
annotation field on the visa.
    (3) In the case of an alien who derives status from a principal 
alien, the name and position of the principal alien shall be reflected 
in the annotation field of the visa.
    (e) Period of validity. If a nonimmigrant visa is issued for an 
unlimited number of applications for admission within the period of 
validity, the letter ``M'' shall be shown under the word ``entries''. 
Otherwise the number of permitted applications for admission shall be 
identified numerically. The date of issuance and the date of expiration 
of the visa shall be shown at the appropriate places in the visa by day, 
month and year in that order. The standard three letter abbreviation for 
the month shall be used in all cases.
    (f) Restriction to specified port of entry. If a nonimmigrant visa 
is valid for admission only at one or more specified ports of entry, the 
names of those ports shall be entered in the annotation field. In cases 
where there is insufficient room to list the 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.
    (g) Delivery of visa. 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.
    (h) Disposition of supporting documents. Original supporting 
documents furnished by the alien should be returned for presentation, if 
necessary, to the immigration authorities at the port of entry. 
Duplicate copies may be retained in the consular files or scanned into 
the consular system.
    (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 must consult with 
the adjudicating officer, or with the Visa Office, to resolve any 
disagreement.

[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]



                   Subpart L_Refusals and Revocations



Sec. 41.121  Refusal of individual visas.

    (a) Grounds for refusal. Nonimmigrant visa refusals must be based on 
legal

[[Page 192]]

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.
    (b) Refusal procedure. (1) When a consular officer knows or has 
reason to believe a visa applicant is ineligible and refuses the 
issuance of a visa, he or she must inform the alien of the ground(s) of 
ineligibility (unless disclosure is barred under INA 212(b)(2) or (3)) 
and whether there is, in law or regulations, a mechanism (such as a 
waiver) to overcome the refusal. The officer shall note the reason for 
the refusal on the application. Upon refusing the nonimmigrant visa, the 
consular officer shall retain the original of each document upon which 
the refusal was based, as well as each document indicating a possible 
ground of ineligibility, and should return all other supporting 
documents supplied by the applicant.
    (2) If an alien, who has not yet filed a visa application, seeks 
advice from a consular officer, who knows or has reason to believe that 
the alien is ineligible to receive a visa on grounds which cannot be 
overcome by the presentation of additional evidence, the officer shall 
so inform the alien. The consular officer shall inform the applicant of 
the provision of law or regulations upon which a refusal of a visa, if 
applied for, would be based (subject to the exception in paragraph 
(b)(1) of this section). If practicable, the consular officer should 
request the alien to execute a nonimmigrant visa application in order to 
make a formal refusal. If the individual fails to execute a visa 
application in these circumstances, the consular officer shall treat the 
matter as if a visa had been refused and create a record of the presumed 
ineligibility which shall be filed in the consular office.
    (c) Nonimmigrant refusals must be reviewed, in accordance with 
guidance by the Secretary of State, by consular supervisors, or a 
designated alternate, to ensure compliance with laws and procedures. If 
the ground(s) of ineligibility upon which the visa was refused cannot be 
overcome by the presentation of additional evidence, the refusal must be 
reviewed without delay; that is, on the day of the refusal or as soon as 
it is administratively possible. If the ground(s) of ineligibility may 
be overcome by the presentation of additional evidence, and the 
applicant has indicated the intention to submit such evidence, a review 
of the refusal may be deferred for not more than 120 days. If the 
reviewing officer disagrees with the decision and he or she has a 
consular commission and title, the reviewing officer can assume 
responsibility and readjudicate the case. If the reviewing officer does 
not have a consular commission and title, he or she must consult with 
the adjudicating officer, or with the Visa Office, to resolve any 
disagreement.
    (d) Review of refusal by Department. The Department may request a 
consular officer in a specific case or in specified classes of cases to 
submit a report if a visa has been refused. The Department will review 
each report and may furnish an advisory opinion to the consular officer 
for assistance in considering the case further. If the officer believes 
that action contrary to an advisory opinion should be taken, the case 
shall be resubmitted to the Department with an explanation of the 
proposed action. Rulings of the Department concerning an interpretation 
of law, as distinguished from an application of the law to the facts, 
shall be binding upon consular officers.

[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]



Sec. 41.122  Revocation of visas.

    (a) Grounds for revocation by consular officers. A consular officer 
is authorized to revoke a nonimmigrant visa issued to an alien if:
    (1) The officer finds that the alien was not, or has ceased to be, 
entitled to the nonimmigrant classification under

[[Page 193]]

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)
    (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
    (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.
    (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 Sec. 41.32(c) with respect to the 
alien's Mexican citizenship and/or residence or the determination 
specified in Sec. 41.33(b) with respect to the alien's status as a 
permanent resident of Canada.
    (b) Notice of proposed revocation. 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.
    (c) Procedure for physically cancelling visas. 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.
    (d) Notice to carriers. 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.
    (e) Notice to Department. 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.
    (f) Record of action. 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.
    (g) Reconsideration of revocation. (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.
    (2) In view of the provisions of Sec. 41.107(d) providing for the 
refund of fees when a visa has not been used as a result of action by 
the U.S. Government, a fee shall not be charged in connection with a 
reinstated visa.
    (h) Revocation of visa by immigration officer. An immigration 
officer is authorized to revoke a valid visa by physically canceling it 
in accordance with the procedure prescribed in paragraph (c) of this 
section if:
    (1) The alien obtains an immigrant visa or an adjustment of status 
to that of permanent resident;
    (2) The alien is ordered excluded from the United States pursuant to 
INA 235(c) or 236;

[[Page 194]]

    (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;
    (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;
    (5) The alien has been permitted by DHS to depart voluntarily from 
the United States pursuant to DHS regulations;
    (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;
    (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
    (8) The visa has been physically removed from the passport in which 
it was issued.
    (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 Sec. 41.32(c) with respect to the 
alien's Mexican citizenship and/or residence or the determination 
specified in Sec. 41.33(b) with respect to the alien's status as a 
permanent resident of Canada.

[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]



PART 42_VISAS: DOCUMENTATION OF IMMIGRANTS UNDER THE IMMIGRATION AND 

NATIONALITY ACT, AS AMENDED--Table of Contents




     Subpart A_Visa and Passport Not Required for Certain Immigrants

Sec.
42.1 Aliens not required to obtain immigrant visas.
42.2 Aliens not required to present passports.

        Subpart B_Classification and Foreign State Chargeability

42.11 Classification symbols.
42.12 Rules of chargeability.

Subpart C_Immigrants Not Subject to Numerical Limitations of INA 201 and 
                                   202

42.21 Immediate relatives.
42.22 Returning resident aliens.
42.23 Certain former U.S. citizens.
42.24 Adoption under the Hague Convention on Protection of Children and 
          Co-operation in Respect of Intercountry Adoption and the 
          Intercountry Adoption Act of 2000.

          Subpart D_Immigrants Subject to Numerical Limitations

42.31 Family-sponsored immigrants.
42.32 Employment-based preference immigrants.
42.33 Diversity immigrants.

                           Subpart E_Petitions

42.41 Effect of approved petition.
42.42 Petitions for immediate relative or preference status.
42.43 Suspension or termination of action in petition cases.

             Subpart F_Numerical Controls and Priority Dates

42.51 Department control of numerical limitations.
42.52 Post records of visa applications.
42.53 Priority date of individual applicants.
42.54 Order of consideration.
42.55 Reports on numbers and priority dates of applications on record.

                Subpart G_Application for Immigrant Visas

42.61 Place of application.
42.62 Personal appearance and interview of applicant.
42.63 Application forms and other documentation.
42.64 Passport requirements.
42.65 Supporting documents.
42.66 Medical examination.
42.67 Execution of application, registration, and fingerprinting.
42.68 Informal evaluation of family members if principal applicant 
          precedes them.

                  Subpart H_Issuance of Immigrant Visas

42.71 Authority to issue visas; visa fees.
42.72 Validity of visas.
42.73 Procedure in issuing visas.
42.74 Issuance of new or replacement visas.

[[Page 195]]

     Subpart I_Refusal, Revocation, and Termination of Registration

42.81 Procedure in refusing individual visas.
42.82 Revocation of visas.
42.83 Termination of registration.

    Authority: 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.

    Source: 52 FR 42613, Nov. 5, 1987, unless otherwise noted.

    Editorial Note: Nomenclature changes to part 42 appear at 71 FR 
34522, June 15, 2006.



     Subpart A_Visa and Passport Not Required for Certain Immigrants



Sec. 42.1  Aliens not required to obtain immigrant visas.

    An immigrant within any of the following categories is not required 
to obtain an immigrant visa:
    (a) Aliens lawfully admitted for permanent residence. An alien who 
has previously been lawfully admitted for permanent residence and who is 
not required under the regulations of the Department of Homeland 
Security to present a valid immigrant visa upon returning to the United 
States.
    (b) Alien members of U.S. Armed Forces. An alien member of the U.S. 
Armed Forces bearing military identification, who has previously been 
lawfully admitted for permanent residence and is coming to the United 
States under official orders or permit of those Armed Forces.
    (c) Aliens entering from Guam, Puerto Rico, or the Virgin Islands. 
An alien who has previously been lawfully admitted for permanent 
residence who seeks to enter the continental United States or any other 
place under the jurisdiction of the United States directly from Guam, 
Puerto Rico, or the Virgin Islands of the United States.
    (d) Child born after issuance of visa to accompanying parent. An 
alien child born after the issuance of an immigrant visa to an 
accompanying parent, who will arrive in the United States with the 
parent, and apply for admission during the period of validity of the 
visa issued to the parent.
    (e) Child born of a national or lawful permanent resident mother 
during her temporary visit abroad. An alien child born during the 
temporary visit abroad of a mother who is a national or lawful permanent 
resident of the United States if applying for admission within 2 years 
of birth and accompanied by either parent applying and eligible for 
readmission as a permanent resident upon that parent's first return to 
the United States after the child's birth.
    (f) American Indians born in Canada. An American Indian born in 
Canada and having at least 50 per centum of blood of the American Indian 
race.



Sec. 42.2  Aliens not required to present passports.

    An immigrant within any of the following categories is not required 
to present a passport in applying for an immigrant visa:
    (a) Certain relatives of U.S. citizens. An alien who is the spouse, 
unmarried son or daughter, or parent, of a U.S. citizen, unless the 
alien is applying for a visa in the country of which the applicant is a 
national and the possession of a passport is required for departure.
    (b) Returning aliens previously lawfully admitted for permanent 
residence. An alien previously lawfully admitted for permanent residence 
who is returning from a temporary visit abroad, unless the alien is 
applying for a visa in the country of which the applicant is a national 
and the possession of a passport is required for departure.
    (c) Certain relatives of aliens lawfully admitted for permanent 
residence. An alien who is the spouse, unmarried son or daughter, or 
parent of an alien lawfully admitted for permanent residence, unless the 
alien is applying for a visa in the country of which the applicant is a 
national and the possession of a passport is required for departure.
    (d) Stateless persons. An alien who is a stateless person, and 
accompanying spouse and unmarried son or daughter.
    (e) Nationals of Communist-controlled countries. An alien who is a 
national of a Communist-controlled country and who is unable to obtain a 
passport from the government of that country, and

[[Page 196]]

accompanying spouse and unmarried son or daughter.
    (f) Alien members of U.S. Armed Forces. An alien who is a member of 
the U.S. Armed Forces.
    (g) Beneficiaries of individual waivers. (1) An alien who would be 
within one of the categories described in paragraphs (a) through (d) of 
this section except that the alien is applying for a visa in a country 
of which the applicant is a national and possession of a passport is 
required for departure, in whose case the passport requirement has been 
waived by the Secretary of State, as evidence by a specific instruction 
from the Department.
    (2) An alien unable to obtain a passport and not within any of the 
foregoing categories, in whose case the passport requirement imposed by 
Sec. 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.

[52 FR 42613, Nov. 5, 1987, as amended at 56 FR 49680, Oct. 1, 1991]



        Subpart B_Classification and Foreign State Chargeability



Sec. 42.11  Classification symbols.

    A visa issued to an immigrant alien within one of the classes 
described below shall bear an appropriate visa symbol to show the 
classification of the alien.

                               Immigrants
------------------------------------------------------------------------
       Symbol                    Class                 Section of law
------------------------------------------------------------------------
                           Immediate Relatives
------------------------------------------------------------------------
IR1.................  Spouse of U.S. Citizen.....  201(b).
IR2.................  Child of U.S. Citizen......  201(b).
IR3.................  Orphan Adopted Abroad by     201(b) &
                       U.S. Citizen.                101(b)(1)(F).
IH3.................  Child from Hague Convention  201(b) &
                       Country Adopted Abroad by    101(b)(1)(G).
                       U.S. Citizen.
IR4.................  Orphan to be Adopted in      201(b) &
                       U.S. by U.S. Citizen.        101(b)(1)(F).
IH4.................  Child from Hague Convention  201(b) &
                       Country to be Adopted in     101(b)(1)(G).
                       U.S. by U.S. Citizen.
IR5.................  Parent of U.S. Citizen at    201(b).
                       Least 21 Years of Age.
CR1.................  Spouse of U.S. Citizen       201(b) & 216.
                       (Conditional Status).
CR2.................  Child of U.S. Citizen        201(b) & 216.
                       (Conditional Status).
IW1.................  Certain Spouses of Deceased  201(b).
                       U.S. Citizens.
IW2.................  Child of IW1...............  201(b).
IB1.................  Self-petition Spouse of      204(a)(1)(A)(iii).
                       U.S. Citizen.
IB2.................  Self-petition child of U.S.  204(a)(1)(A)(iv).
                       Citizen.
IB3.................  Child of IB1...............  204(a)(1)(A)(iii).
VI5.................  Parent of U.S. Citizen Who   201(b) & sec. 2 of
                       Acquired Permanent           the Virgin Islands
                       Resident Status Under the    Nonimmigrant Alien
                       Virgin Islands               Adjustment Act,
                       Nonimmigrant Alien           (Pub. L. 97-271).
                       Adjustment Act.
------------------------------------------------------------------------
                      Vietnam Amerasian Immigrants
------------------------------------------------------------------------
AM1.................  Vietnam Amerasian Principal  584(b)(1)(A) of the
                                                    Foreign Operations,
                                                    Export Financing,
                                                    and Related Programs
                                                    Appropriations Act,
                                                    1988 (as contained
                                                    in section 101(e) of
                                                    Pub. L. 100-102) as
                                                    amended.
AM2.................  Spouse or Child of AM1.....  584(b)(1)(A) and
                                                    584(b)(1)(B) of the
                                                    Foreign Operations,
                                                    Export Financing,
                                                    and Related Programs
                                                    Appropriations Act,
                                                    1988 (as contained
                                                    in section 101(e) of
                                                    Public Law 100-102)
                                                    as amended.
AM3.................  Natural Mother of AM1 (and   584(b)(1)(A) and
                       Spouse or Child of Such      584(b)(1)(C) of the
                       Mother) or Person Who has    Foreign Operations,
                       Acted in Effect as the       Export Financing,
                       Mother, Father, or Next-of-  and Related Programs
                       Kin of AM1 (and Spouse or    Appropriations Act,
                       Child of Such Person).       1988 (as contained
                                                    in section 101(e) of
                                                    Public Law 100-102)
                                                    as amended.
------------------------------------------------------------------------

[[Page 197]]

 
                           Special Immigrants
------------------------------------------------------------------------
SB1.................  Returning Resident.........  101(a)(27)(A).
SC1.................  Person Who Lost U.S.         101(a)(27)(B) &
                       Citizenship by Marriage.     324(a).
SC2.................  Person Who Lost U.S.         101(a)(27)(B) & 327.
                       Citizenship by Serving in
                       Foreign Armed Forces.
SI1.................  Certain Aliens Employed by   Section 1059 of Pub.
                       the U.S. Government in       L. 109-163 as
                       Iraq or Afghanistan as       amended by Pub. L.
                       Translators or               110-36.
                       Interpreters.
SI2.................  Spouse of SI1..............  Section 1059 of Pub.
                                                    L. 109-163 as
                                                    amended by Pub. L.
                                                    110-36.
SI3.................  Child of SI1...............  Section 1059 of Pub.
                                                    L. 109-163 as
                                                    amended by Pub. L.
                                                    110-36.
SM1.................  Alien Recruited Outside the  101(a)(27)(K).
                       United States Who Has
                       Served or is Enlisted to
                       Serve in the U.S. Armed
                       Forces for 12 Years.
SM2.................  Spouse of SM1..............  101(a)(27)(K).
SM3.................  Child of SM1...............  101(a)(27)(K).
SQ1.................  Certain Iraqis or Afghans    Section 602(b),
                       Employed by or on Behalf     Division F, Title
                       of the U.S. Government.      VI, Omnibus
                                                    Appropriations Act
                                                    of 2009, Pub. L. 111-
                                                    8 and Section 1244
                                                    of Pub. L. 110-181.
SQ2.................  Spouse of SQ1..............  Section 602(b),
                                                    Division F, Title
                                                    VI, Omnibus
                                                    Appropriations Act
                                                    of 2009, Pub. L. 111-
                                                    8 and Section 1244
                                                    of Pub. L. 110-181.
SQ3.................  Child of SQ1...............  Section 602(b),
                                                    Division F, Title
                                                    VI, Omnibus
                                                    Appropriations Act
                                                    of 2009, Pub. L. 111-
                                                    8 and Section 1244
                                                    of Pub. L. 110-181.
SU2.................  Spouse of U1...............  INA 245(m)(3) & INA
                                                    101(a)(15)(U)(ii).
SU3.................  Child of U1................  INA 245(m)(3) & INA
                                                    101(a)(15)(U)(ii).
SU5.................  Parent of U1...............  INA 245(m)(3) & INA
                                                    101(a)(15)(U)(ii).
------------------------------------------------------------------------
                      Family-Sponsored Preferences
------------------------------------------------------------------------
                          Family 1st Preference
------------------------------------------------------------------------
F11.................  Unmarried Son or Daughter    203(a)(1).
                       of U.S. Citizen.
F12.................  Child of F11...............  203(d) & 203(a)(1).
B11.................  Self-petition Unmarried Son  204(a)(1)(A)(iv) &
                       or Daughter of U.S.          203(a)(1).
                       Citizen.
B12.................  Child of B11...............  203(d),
                                                    204(a)(1)(A)(iv) &
                                                    203(a)(1).
------------------------------------------------------------------------
         Family 2nd Preference (Subject to Country Limitations)
------------------------------------------------------------------------
F21.................  Spouse of Lawful Permanent   203(a)(2)(A).
                       Resident.
F22.................  Child of Lawful Permanent    203(a)(2)(A).
                       Resident.
F23.................  Child of F21 or F22........  203(d) &
                                                    203(a)(2)(A).
F24.................  Unmarried Son or Daughter    203(a)(2)(B).
                       of Lawful Permanent
                       Resident.
F25.................  Child of F24...............  203(d) &
                                                    203(a)(2)(B).
C21.................  Spouse of Lawful Permanent   203(a)(2)(A) & 216.
                       Resident (Conditional).
C22.................  Child of Alien Resident      203(a)(2)(A) & 216.
                       (Conditional).
C23.................  Child of C21 or C22          203(d) & 203(a)(2)(A)
                       (Conditional).               & 216.
C24.................  Unmarried Son or Daughter    203(a)(2)(B) & 216.
                       of Lawful Permanent
                       Resident (Conditional).
C25.................  Child of F24 (Conditional).  203(d) & 203(a)(2)(B)
                                                    & 216.
B21.................  Self-petition Spouse of      204(a)(1)(B)(ii).
                       Lawful Permanent Resident.
B22.................  Self-petition Child of       204(a)(1)(B)(iii).
                       Lawful Permanent Resident.
B23.................  Child of B21 or B22........  203(d) &
                                                    204(a)(1)(B)(ii).
B24.................  Self-petition Unmarried Son  204(a)(1)(B)(iii).
                       or Daughter of Lawful
                       Permanent Resident.
B25.................  Child of B24...............  203(d) &
                                                    204(a)(1)(B)(iii).
------------------------------------------------------------------------
         Family 2nd Preference (Exempt from Country Limitations)
------------------------------------------------------------------------
FX1.................  Spouse of Lawful Permanent   202(a)(4)(A) &
                       Resident.                    203(a)(2)(A).
FX2.................  Child of Lawful Permanent    202(a)(4)(A) &
                       Resident.                    203(a)(2)(A).
FX3.................  Child of FX1 or FX2........  202(a)(4)(A) &
                                                    203(a)(2)(A) &
                                                    203(d).
CX1.................  Spouse of Lawful Permanent   202(a)(4)(A) &
                       Resident (Conditional).      203(a)(2)(A) & 216.
CX2.................  Child of Lawful Permanent    202(a)(4)(A) &
                       Resident (Conditional).      203(a)(2)(A) & 216.
CX3.................  Child of CX1 or CX2          202(a)(4)(A) &
                       (Conditional).               203(a)(2)(A) &
                                                    203(d) & 216.
BX1.................  Self-petition Spouse of      204(a)(1)(B)(ii).
                       Lawful Permanent Resident.
BX2.................  Self-petition Child of       204(a)(1)(B)(iii).
                       Lawful Permanent Resident.

[[Page 198]]

 
BX3.................  Child of BX1 or BX2........  204(a)(1)(B)(ii) &
                                                    203(d).
------------------------------------------------------------------------
                          Family 3rd Preference
------------------------------------------------------------------------
F31.................  Married Son or Daughter of   203(a)(3).
                       U.S. Citizen.
F32.................  Spouse of F31..............  203(d) & 203(a)(3).
F33.................  Child of F31...............  203(d) & 203(a)(3).
C31.................  Married Son or Daughter of   203(a)(3) & 216.
                       U.S. Citizen (Conditional).
C32.................  Spouse of C31 (Conditional)  203(d) & 203(a)(3) &
                                                    216.
C33.................  Child of C31 (Conditional).  203(d) & 203(a)(3) &
                                                    216.
B31.................  Self-petition Married Son    204(a)(1)(A)(iv) &
                       or Daughter of U.S.          203(a)(3).
                       Citizen.
B32.................  Spouse of B31..............  203(d),
                                                    204(a)(1)(A)(iv) &
                                                    203(a)(3).
B33.................  Child of B31...............  203(d),
                                                    204(a)(1)(A)(iv) &
                                                    203(a)(3).
------------------------------------------------------------------------
                          Family 4th Preference
------------------------------------------------------------------------
F41.................  Brother or Sister of U.S.    203(a)(4).
                       Citizen at Least 21 Years
                       of Age.
F42.................  Spouse of F41..............  203(d) & 203(a)(4).
F43.................  Child of F41...............  203(d) & 203(a)(4).
------------------------------------------------------------------------
                      Employment-Based Preferences
              Employment 1st Preference (Priority Workers)
------------------------------------------------------------------------
E11.................  Alien with Extraordinary     203(b)(1)(A).
                       Ability.
E12.................  Outstanding Professor or     203(b)(1)(B).
                       Researcher.
E13.................  Multinational Executive or   203(b)(1)(C).
                       Manager.
E14.................  Spouse of E11, E12, or E13.  203(d) & 203(b)(1)(A)
                                                    & 203(b)(1)(B) &
                                                    203(b)(1)(C).
E15.................  Child of E11, E12, or E13..  203(d) & 203(b)(1)(A)
                                                    & 203(b)(1)(B) &
                                                    203(b)(1)(C).
------------------------------------------------------------------------
  Employment 2nd Preference (Professionals Holding Advanced Degrees or
                     Persons of Exceptional Ability)
------------------------------------------------------------------------
E21.................  Professional Holding         203(b)(2).
                       Advanced Degree or Alien
                       of Exceptional Ability.
E22.................  Spouse of E21..............  203(d) & 203(b)(2).
E23.................  Child of E21...............  203(d) & 203(b)(2).
------------------------------------------------------------------------
  Employment 3rd Preference (Skilled Workers, Professionals, and Other
                                Workers)
------------------------------------------------------------------------
E31.................  Skilled Worker.............  203(b)(3)(A)(i).
E32.................  Professional Holding         203(b)(3)(A)(ii).
                       Baccalaureate Degree.
E34.................  Spouse of E31 or E32.......  203(d) &
                                                    203(b)(3)(A)(i) &
                                                    203(b)(3)(A)(ii).
E35.................  Child of E31 or E32........  203(d) &
                                                    203(b)(3)(A)(i) &
                                                    203(b)(3)(A)(ii).
EW3.................  Other Worker (Subgroup       203(b)(3)(A)(iii).
                       Numerical Limit).
EW4.................  Spouse of EW3..............  203(d) &
                                                    203(b)(3)(A)(iii).
EW5.................  Child of EW3...............  203(d) &
                                                    203(b)(3)(A)(iii).
------------------------------------------------------------------------
         Employment 4th Preference (Certain Special Immigrants)
------------------------------------------------------------------------
BC1.................  Broadcaster in the U.S.      101(a)(27)(M) &
                       employed by the              203(b)(4).
                       International Broadcasting
                       Bureau of the Broadcasting
                       Board of Governors or a
                       grantee of such
                       organization.
BC2.................  Accompanying spouse of BC1.  101(a)(27)(M) &
                                                    203(b)(4).
BC3.................  Accompanying child of BC1..  101(a)(27)(M) &
                                                    203(b)(4).
SD1.................  Minister of Religion.......  101(a)(27)(C)(ii)(I)
                                                    & 203(b)(4).
SD2.................  Spouse of SD1..............  101(a)(27)(C)(ii)(I)
                                                    & 203(b)(4).
SD3.................  Child of SD1...............  101(a)(27)(C)(ii)(I)
                                                    & 203(b)(4).
SE1.................  Certain Employees or Former  101(a)(27)(D) &
                       Employees of the U.S.        203(b)(4).
                       Government Abroad.
SE2.................  Spouse of SE1..............  101(a)(27)(D) &
                                                    203(b)(4).
SE3.................  Child of SE1...............  101(a)(27)(D) &
                                                    203(b)(4).
SF1.................  Certain Former Employees of  101(a)(27)(E) & 203
                       the Panama Canal Company     (b)(4).
                       or Canal Zone Government.
SF2.................  Spouse or Child of SF1.....  101(a)(27)(E) & 203
                                                    (b)(4).
SG1.................  Certain Former Employees of  101(a)(27)(F) & 203
                       the U.S. Government in the   (b)(4).
                       Panama Canal Zone.
SG2.................  Spouse or Child of SG1.....  101(a)(27)(F) & 203
                                                    (b)(4).
SH1.................  Certain Former Employees of  101(a)(27)(G) & 203
                       the Panama Canal Company     (b)(4).
                       or Canal Zone Government
                       on April 1, 1979.
SH2.................  Spouse or Child of SH1.....  101(a)(27)(G) &
                                                    203(b)(4).
SJ1.................  Certain Foreign Medical      101(a)(27)(H).
                       Graduates (Adjustments
                       Only).

[[Page 199]]

 
SJ2.................  Accompanying Spouse or       101(a)(27)(H) &
                       Child of SJ1.                203(b)(4).
SK1.................  Certain Retired              101(a)(27)(I)(iii) &
                       International Organization   203(b)(4).
                       employees.
SK2.................  Spouse of SK1..............  101(a)(27)(I)(iv) &
                                                    203(b)(4).
SK3.................  Certain Unmarried Sons or    101(a)(27)(I)(i) &
                       Daughters of an              203(b)(4).
                       International Organization
                       Employee.
SK4.................  Certain Surviving Spouses    101(a)(27)(I)(ii) &
                       of a deceased                203(b)(4).
                       International Organization
                       Employee.
SL1.................  Juvenile Court Dependent     101(a)(27)(J) &
                       (Adjustment Only).           203(b)(4).
SN1.................  Certain retired NATO6        101(a)(27)(L) &
                       civilians.                   203(b)(4).
SN2.................  Spouse of SN1..............  101(a)(27)(L) &
                                                    203(b)(4).
SN3.................  Certain unmarried sons or    101(a)(27)(L) &
                       daughters of NATO6           203(b)(4).
                       civilian employees.
SN4.................  Certain surviving spouses    101(a)(27)(L) &
                       of deceased NATO6 civilian   203(b)(4).
                       employees.
SP..................  Alien Beneficiary of a       Section 421 of Public
                       petition or labor            Law 107-56.
                       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.
SR1.................  Certain Religious Workers..  101(a)(27)(C)(ii)(II)
                                                    & (III) as amended,
                                                    & 203(b)(4).
SR2.................  Spouse of SR1..............  101(a)(27)(C)(ii)(II)
                                                    & (III) as amended,
                                                    & 203(b)(4).
SR3.................  Child of SR1...............  101(a)(27)(C)(ii)(II)
                                                    & (III) as amended,
                                                    & 203(b)(4).
------------------------------------------------------------------------
   Employment 5th Preference (Employment Creation Conditional Status)
------------------------------------------------------------------------
C51.................  Employment Creation OUTSIDE  203(b)(5)(A).
                       Targeted Areas.
C52.................  Spouse of C51..............  203(d) &
                                                    203(b)(5)(A).
C53.................  Child of C51...............  203(d) &
                                                    203(b)(5)(A).
T51.................  Employment Creation IN       203(b)(5)(B).
                       Targeted Rural/High
                       Unemployment Area.
T52.................  Spouse of T51..............  203(d) & 203
                                                    (b)(5)(B).
T53.................  Child of T51...............  203(d) &
                                                    203(b)(5)(B).
R51.................  Investor Pilot Program, Not  203(b)(5) & Sec. 610
                       in Targeted Area.            of the Departments
                                                    of Commerce,
                                                    Justice, and State,
                                                    the Judiciary and
                                                    Related Agencies
                                                    Appropriations Act,
                                                    1993 (Pub. L. 102-
                                                    395), as amended.
R52.................  Spouse of R51..............  203(d) & 203(b)(5) &
                                                    Sec. 610 of the
                                                    Departments of
                                                    Commerce, Justice,
                                                    and State, the
                                                    Judiciary and
                                                    Related Agencies
                                                    Appropriations Act,
                                                    1993 (Pub. L. 102-
                                                    395), as amended.
R53.................  Child of R51...............  203(d) & 203(b)(5) &
                                                    Sec. 610 of the
                                                    Departments of
                                                    Commerce, Justice,
                                                    and State, the
                                                    Judiciary and
                                                    Related Agencies
                                                    Appropriations Act,
                                                    1993 (Pub. L. 102-
                                                    395), as amended.
I51.................  Investor Pilot Program, in   203(b)(5) & Sec. 610
                       Targeted Area.               of the Departments
                                                    of Commerce,
                                                    Justice, and State,
                                                    the Judiciary and
                                                    Related Agencies
                                                    Appropriations Act,
                                                    1993 (Pub. L. 102-
                                                    395), as amended.
 I52................  Spouse of I51..............  203(d) & 203(b)(5) &
                                                    Sec. 610 of the
                                                    Departments of
                                                    Commerce, Justice,
                                                    and State, the
                                                    Judiciary and
                                                    Related Agencies
                                                    Appropriations Act,
                                                    1993 (Pub. L. 102-
                                                    395), as amended.
I53.................  Child of I51...............  203(d) & 203(b)(5) &
                                                    Sec. 610 of the
                                                    Departments of
                                                    Commerce, Justice,
                                                    and State, the
                                                    Judiciary and
                                                    Related Agencies
                                                    Appropriations Act,
                                                    1993 (Pub. L. 102-
                                                    395), as amended.
------------------------------------------------------------------------

[[Page 200]]

 
                  Other Numerically Limited Categories
                          Diversity Immigrants
------------------------------------------------------------------------
DV1.................  Diversity Immigrant........  203(c).
DV2.................  Spouse of DV1..............  203(d) & 203(c).
DV3.................  Child of DV1...............  203(d) & 203(c).
------------------------------------------------------------------------


[74 FR 61521, Nov. 25, 2009]



Sec. 42.12  Rules of chargeability.

    (a) Applicability. An immigrant shall be charged to the numerical 
limitation for the foreign state or dependent area of birth, unless the 
case falls within one of the exceptions to the general rule of 
chargeability provided by INA 202(b) and paragraphs (b) through (e) of 
this section to prevent the separation of families or the alien is 
classifiable under:
    (1) INA 201(b);
    (2) INA 101(a)(27) (A) or (B);
    (3) Section 112 of Public Law 101-649;
    (4) Section 124 of Public Law 101-649;
    (5) Section 132 of Public Law 101-649;
    (6) Section 134 of Public Law 101-649; or
    (7) Section 584(b)(1) as contained in section 101(e) of Public Law 
100-202.
    (b) Exception for child. If necessary to prevent the separation of a 
child from the alien parent or parents, an immigrant child, including a 
child born in a dependent area, may be charged to the same foreign state 
to which a parent is chargeable if the child is accompanying or 
following to join the parent, in accordance with INA 202(b)(1).
    (c) Exception for spouse. If necessary to prevent the separation of 
husband and wife, an immigrant spouse, including a spouse born in a 
dependent area, may be charged to a foreign state to which a spouse is 
chargeable if accompanying or following to join the spouse, in 
accordance with INA 202(b)(2).
    (d) Exception for alien born in the United States. An immigrant who 
was born in the United States shall be charged to the foreign state of 
which the immigrant is a citizen or subject. If not a citizen or subject 
of any country, the alien shall be charged to the foreign state of last 
residence as determined by the consular officer, in accordance with INA 
202(b)(3).
    (e) Exception for alien born in foreign state in which neither 
parent was born or had residence at time of alien's birth. An alien who 
was born in a foreign state, as defined in Sec. 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.

[52 FR 42613, Nov. 5, 1987, as amended at 56 FR 49681, Oct. 1, 1991]



Subpart C_Immigrants Not Subject to Numerical Limitations of INA 201 and 
                                   202

    Source: 56 FR 49676, Oct. 1, 1991, unless otherwise noted.



Sec. 42.21  Immediate relatives.

    (a) Entitlement to status. An alien who is a spouse or child of a 
United States citizen, or a parent of a U.S. citizen at least 21 years 
of age, shall be classified as an immediate relative under INA 201(b) if 
the consular officer has received from DHS an approved Petition to 
Classify Status of Alien Relative for Issuance of an Immigrant Visa, 
filed on the alien's behalf by the U.S. citizen and approved in 
accordance with INA 204, and the officer is satisfied that the alien has 
the relationship claimed in the petition. An immediate relative shall be 
documented as such unless the

[[Page 201]]

U.S. citizen refuses to file the required petition, or unless the 
immediate relative is also a special immigrant under INA 101(a)(27) (A) 
or (B) and not subject to any numerical limitation.
    (b) Spouse of a deceased U.S. citizen. The spouse of a deceased U.S. 
citizen, and each child of the spouse, will be entitled to immediate 
relative status after the date of the citizen's death provided the 
spouse or child meets the criteria of INA 201(b)(2)(A)(i) or of section 
423(a)(1) of Public Law 107-56 (USA Patriot Act) and the Consular 
Officer has received an approved petition from the DHS which accords 
such status, or official notification of such approval, and the Consular 
Officer is satisfied that the alien meets those criteria.
    (c) Child of a U.S. citizen victim of terrorism. The child of a U.S. 
citizen slain in the terrorist actions of September 11, 2001, shall 
retain the status of an immediate relative child (regardless of changes 
in age or marital status) if the child files a petition for such status 
within two years of the citizen's death pursuant to section 423(a)(2) of 
Public Law 107-56, and the consular officer has received an approved 
petition according such status or official notification of such 
approval.

[56 FR 49676, Oct. 1, 1991, as amended at 64 FR 55419, Oct. 13, 1999; 67 
FR 1415, Jan. 11, 2002]



Sec. 42.22  Returning resident aliens.

    (a) Requirements for returning resident status. An alien shall be 
classifiable as a special immigrant under INA 101(a)(27)(A) if the 
consular officer is satisfied from the evidence presented that:
    (1) The alien had the status of an alien lawfully admitted for 
permanent residence at the time of departure from the United States;
    (2) The alien departed from the United States with the intention of 
returning and has not abandoned this intention; and
    (3) The alien is returning to the United States from a temporary 
visit abroad and, if the stay abroad was protracted, this was caused by 
reasons beyond the alien's control and for which the alien was not 
responsible.
    (b) Documentation needed. Unless the consular officer has reason to 
question the legality of the alien's previous admission for permanent 
residence or the alien's eligibility to receive an immigrant visa, only 
those records and documents required under INA 222(b) which relate to 
the period of residence in the United States and the period of the 
temporary visit abroad shall be required. If any required record or 
document is unobtainable, the provisions of Sec. 42.65(d) shall apply.
    (c) Returning resident alien originally admitted under the Act of 
December 28, 1945. An alien admitted into the United States under 
Section 1 of the Act of December 28, 1945 (``GI Brides Act'') shall not 
be refused an immigrant visa after a temporary absence abroad solely 
because of a mental or physical defect or defects that existed at the 
time of the original admission.

[56 FR 49676, Oct. 1, 1991, as amended at 63 FR 48578, Sept. 11, 1998]



Sec. 42.23  Certain former U.S. citizens.

    (a) Women expatriates. 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).
    (b) Military expatriates. An alien shall be classifiable as a 
special immigrant under INA 101(a)(27)(B) if the consular officer is 
satisfied by appropriate evidence that the alien was formerly a U.S. 
citizen and that the alien lost citizenship under the circumstances set 
forth in INA 327.



Sec. 42.24  Adoption under the Hague Convention on Protection of Children and 

Co-operation in Respect of Intercountry Adoption and the Intercountry Adoption 

Act of 2000.

    (a) For purposes of this section, the definitions in 22 CFR 96.2 
apply.
    (b) On or after the Convention effective date, as defined in 22 CFR 
96.17, a child habitually resident in a Convention country who is 
adopted by a United States citizen deemed to be habitually resident in 
the United States in accordance with applicable DHS regulations must 
qualify for visa status under the provisions of INA section 101(b)(1)(G) 
as provided in this section.

[[Page 202]]

Such a child shall not be accorded status under INA section 
101(b)(1)(F), provided that a child may be accorded status under INA 
section 101(b)(1)(F) if Form I-600A or I-600 was filed before the 
Convention effective date. Although this part 42 generally applies to 
the issuance of immigrant visas, this section 42.24 may also provide the 
basis for issuance of a nonimmigrant visa to permit a Convention adoptee 
to travel to the United States for purposes of naturalization under INA 
section 322.
    (c) The provisions of this section govern the operations of consular 
officers in processing cases involving children for whom classification 
is sought under INA section 101(b)(1)(G), unless the Secretary of State 
has personally waived any requirement of the IAA or these regulations in 
a particular case in the interests of justice or to prevent grave 
physical harm to the child, to the extent consistent with the 
Convention.
    (d) An alien child shall be classifiable under INA section 
101(b)(1)(G) only if, before the child is adopted or legal custody for 
the purpose of adoption is granted, a petition for the child has been 
received and provisionally approved by a DHS officer or, where 
authorized by DHS, by a consular officer, and a visa application for the 
child has been received and annotated in accordance with paragraph (h) 
of this section by a consular officer. No alien child shall be issued a 
visa pursuant to INA section 101(b)(1)(G) unless the petition and visa 
application are finally approved.
    (e) If a petition for a child under INA section 101(b)(1)(G) is 
properly filed with a consular officer, the consular officer will review 
the petition for the purpose of determining whether it can be 
provisionally approved in accordance with applicable DHS requirements. 
If a properly completed application for waiver of inadmissibility is 
received by a consular officer at the same time that a petition for a 
child under INA section 101(b)(1)(G) is received, provisional approval 
cannot take place unless the waiver is approved, and therefore the 
consular officer, pursuant to 8 CFR 204.313(i)(3) and 8 CFR 212.7, will 
forward the petition and the waiver application to DHS for decisions as 
to approval of the waiver and provisional approval of the petition. If a 
petition for a child under INA section 101(b)(1)(G) is received by a DHS 
officer, the consular officer will conduct any reviews, determinations 
or investigations requested by DHS with regard to the petition and 
classification determination in accordance with applicable DHS 
procedures.
    (f) A petition shall be provisionally approved by the consular 
officer if, in accordance with applicable DHS requirements, it appears 
that the child will be classifiable under INA section 101(b)(1)(G) and 
that the proposed adoption or grant of legal custody will be in 
compliance with the Convention. If the consular officer knows or has 
reason to believe the petition is not provisionally approvable, the 
consular officer shall forward it to DHS pursuant to 8 CFR 
204.313(i)(3).
    (g) After a petition has been provisionally approved, a completed 
visa application form, any supporting documents required pursuant to 
Sec. 42.63 and Sec. 42.65, and any required fees must be submitted to 
the consular officer in accordance with Sec. 42.61 for a provisional 
review of visa eligibility. The requirements in Sec. 42.62, Sec. 
42.64, Sec. 42.66 and Sec. 42.67 shall also be satisfied to the extent 
practicable.
    (h) A consular officer shall provisionally determine visa 
eligibility based on a review of the visa application, submitted 
supporting documents, and the provisionally approved petition. In so 
doing, the consular officer shall follow all procedures required to 
adjudicate the visa to the extent possible in light of the degree of 
compliance with Sec. Sec. 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

[[Page 203]]

annotated as described above, the consular officer shall deny the visa 
in accordance with Sec. 42.81, regardless of whether the application 
has yet been executed in accordance with Sec. 42.67(a); provided 
however that, in cases in which a waiver may be available under the INA 
and the consular officer determines that the visa application appears 
otherwise approvable, the consular officer shall inform the prospective 
adoptive parents of the procedure for applying to DHS for a waiver. If 
in addition the consular officer comes to know or have reason to believe 
that the petition is not clearly approvable as provided in 8 CFR 
204.313(i)(3), the consular officer shall forward the petition to DHS 
pursuant to that section.
    (i) If the petition has been provisionally approved and the visa 
application has been annotated in accordance with subparagraph (h), the 
consular officer shall notify the country of origin that the steps 
required by Article 5 of the Convention have been taken.
    (j) After the consular officer has received appropriate notification 
from the country of origin that the adoption or grant of legal custody 
has occurred and any remaining requirements established by DHS or 
Sec. Sec. 42.61 through 42.67 have been fulfilled, the consular 
officer, if satisfied that the requirements of the IAA and the 
Convention have been met with respect to the adoption or grant of legal 
custody, shall affix to the adoption decree or grant of legal custody a 
certificate so indicating. This certificate shall constitute the 
certification required by IAA section 301(a) and INA section 204(d)(2). 
For purposes of determining whether to issue a certificate, the fact 
that a consular officer notified the country of origin pursuant to 
paragraph (i) of this section that the steps required by Article 5 of 
the Convention had been taken and the fact that the country of origin 
has provided appropriate notification that the adoption or grant of 
legal custody has occurred shall together constitute prima facie 
evidence of compliance with the Convention and the IAA.
    (k) If the consular officer is unable to issue the certificate 
described in paragraph (j) of this section, the consular officer shall 
notify the country of origin of the consular officer's decision.
    (l) After the consular officer determines whether to issue the 
certificate described in paragraph (j) of this section, the consular 
officer shall finally adjudicate the petition and visa application in 
accordance with standard procedures.
    (m) If the consular officer is unable to give final approval to the 
visa application or the petition, then the consular officer shall 
forward the petition to DHS, pursuant to Sec. 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 Sec. 42.81. The consular officer shall notify the 
country of origin that the visa has been refused.

[72 FR 61305, Oct. 30, 2007]



          Subpart D_Immigrants Subject to Numerical Limitations

    Source: 56 FR 49676, Oct. 1, 1991, unless otherwise noted.



Sec. 42.31  Family-sponsored immigrants.

    (a) Entitlement to status. An alien shall be classifiable as a 
family-sponsored immigrant under INA 203(a) (1), (2), (3) or (4) if the 
consular officer has received from DHS a Petition to Classify Status of 
Alien Relative for Issuance of Immigrant Visa approved in accordance 
with INA 204 to accord the alien such preference status, or official 
notification of such an approval, and the consular officer is satisfied 
that the alien has the relationship to the petitioner indicated in the 
petition. In the case of a petition according an alien status under INA 
203(a) (1) or (3) or status as an unmarried son or daughter under INA 
203(a)(2), the petitioner must be a ``parent'' as defined in INA 
101(b)(2) and 22 CFR 40.1. In the case of a petition to accord an alien 
status under INA 203(a)(4) filed on or after January 1, 1977, the 
petitioner must be at least twenty-one years of age.
    (b) Entitlement to derivative status. Pursuant to INA 203(d), and 
whether or not named in the petition, the child of a family-sponsored 
first, second, third or fourth preference immigrant or the spouse of a 
family-sponsored third or

[[Page 204]]

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.

[56 FR 49676, Oct. 1, 1991, as amended at 61 FR 1836, Jan. 24, 1996]



Sec. 42.32  Employment-based preference immigrants.

    Aliens subject to the worldwide level specified in section 201(d) 
for employment-based immigrants in a fiscal year shall be allotted visas 
as indicated below.
    (a) First preference--Priority workers--(1) Entitlement to status. 
An alien shall be classifiable as an employment-based first preference 
immigrant under INA 203(b)(1) if the consular office has received from 
DHS a Petition for Immigrant Worker approved in accordance with INA 204 
to accord the alien such Preference status, or official notification of 
such an approval, and the consular officer is satisfied that the alien 
is within one of the classes described in INA 203(b)(1).
    (2) Entitlement to derivative status. Pursuant to INA 203(d), and 
whether or not named in the petition, the child or spouse of an 
employment-based first preference immigrant, if not otherwise entitled 
to an immigrant status and the immediate issuance of a visa, is entitled 
to a derivative status corresponding to the classification and priority 
date of the beneficiary of the petition.
    (b) Second preference--Professionals with advanced degrees or 
persons of exceptional ability--(1) Entitlement to status. An alien 
shall be classifiable as an employment-based second preference immigrant 
under INA 203(b)(2) if the consular officer has received from DHS a 
Petition for Immigrant Worker approved in accordance with INA 204 to 
accord the alien such preference status, or official notification of 
such an approval, and the consular officer is satisfied that the alien 
is within one of the classes described in INA 203(b)(2).
    (2) Entitlement to derivative status. Pursuant to INA 203(d), and 
whether or not named in the petition, the child or spouse of an 
employment-based second preference immigrant, if not otherwise entitled 
to an immigrant status and the immediate issuance of a visa, is entitled 
to a derivative status corresponding to the classification and priority 
date of the beneficiary of the petition.
    (c) Third preference--Skilled workers, professionals, other 
workers--(1) Entitlement to status. An alien shall be classifiable as an 
employment-based third preference immigrant under INA 203(b)(3) if the 
consular officer has received from DHS a Petition for Immigrant Worker 
approved in accordance with INA 204 to accord the alien such preference 
status, or official notification of such an approval, and the consular 
officer is satisfied that the alien is within one of the classes 
described in INA 203(b)(3).
    (2) Entitlement to derivative status. Pursuant to INA 203(d), and 
whether or not named in the petition, the child or spouse of an 
employment-based third preference immigrant, if not otherwise entitled 
to an immigrant status and the immediate issuance of a visa, is entitled 
to a derivative status corresponding to the classification and priority 
date of the beneficiary of the petition.
    (d) Fourth preference--Special immigrants--(1) Religious workers--
(i) Classification based on qualifications under INA 101(A)(27)(C). An 
alien shall be classifiable under INA 203(b)(4) as a special immigrant 
described in INA 101(a)(27)(C) if:
    (A) The consular officer has received a petition approved by DHS to 
accord such classification, or an official notification of such 
approval; and
    (B) The consular officer is satisfied from the evidence presented 
that the alien qualifies under that section; or
    (C) The consular officer is satisfied the alien is the spouse or 
child of a religious worker so classified and is accompanying or 
following to join the principal alien.
    (ii) Timeliness of application. An immigrant visa issued under INA 
203(b)(4) to an alien described in INA 101(a)(27)(C), other than a 
minister of religion, who qualifies as a ``religious worker'' as defined 
in 8 CFR 204.5, shall bear the usual validity except that in no case

[[Page 205]]

shall it be valid later than September 30, 2003.
    (2) Certain U.S. Government employees--(i) General. (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.
    (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.
    (C) Pursuant to INA 203(d), and whether or not named in the 
petition, the spouse or child of an alien classified under INA 
203(b)(4), if not 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.
    (ii) Special immigrant status for certain aliens employed at the 
United States mission in Hong Kong. (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:
    (1) The alien has performed faithfully for a total of three years or 
more;
    (2) The alien is a member of the immediate family of an employee 
entitled to such special immigrant status; and
    (3) 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
    (4) 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.
    (B) An alien desiring to benefit from this provision must seek such 
status not later than January 1, 2002.
    (C) For purposes of Sec. 42.32(d)(2)(ii)(A), the term member of the 
immediate family 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.
    (iii) Priority date. 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.
    (iv) Petition validity. Except as noted in this paragraph, the 
validity of a petition approved for classification under INA 203(b)(4) 
shall be six months beyond the date of the Secretary of State's approval 
thereof or the availability of a visa number, whichever is later. In 
cases described in Sec. 42.32(d)(2)(ii), the validity of the petition 
shall not in any case extend beyond January 1, 2002.
    (v) Extension of petition validity. 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.
    (vi) Fees. The Secretary of State shall establish a fee for the 
filing of a petition to accord status under INA 203(b)(4) which shall be 
collected following notification that the Secretary has approved status 
as a special immigrant under INA 101(a)(27)(D) for the alien.
    (vii) Delegation of authority to approve petitions. The authority to 
approve petitions to accord status under INA 203(b)(4) to an alien 
described in INA 101(a)(27)(D) is hereby delegated to the

[[Page 206]]

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.
    (3) Panama Canal employees--(i) Entitlement to status. An alien who 
is subject to the numerical limitations specified in section 3201(c) of 
the Panama Canal Act of 1979, Public Law 96-70, is classifiable under 
INA 203(b)(4) as a special immigrant described in INA 101(a)(27) (E), 
(F) or (G) if the consular officer has received a petition approved by 
DHS to accord such classification, or official notification of such an 
approval, and the consular officer is satisfied that the alien is within 
one of the classes described in INA 101(a)(27) (E), (F), or (G).
    (ii) Entitlement to derivative status. Pursuant to INA 203(d), and 
whether or not named in the petition, the spouse or child of any alien 
classified under INA 203(b)(4) as a special immigrant qualified under 
this section, if not otherwise entitled to an immigrant status and the 
immediate issuance of a visa, is entitled to a derivative status 
corresponding to the classification and priority date of the beneficiary 
of the petition.
    (4) Spouse and children of certain foreign medical graduates. The 
accompanying spouse and children of a graduate of a foreign medical 
school or of a person qualified to practice medicine in a foreign state 
who has adjusted status as a special immigrant under the provisions of 
INA 101(a)(27)(H) are classifiable under INA 203(b)(4) as special 
immigrants defined in INA 101(a)(27)(H) if the consular officer has 
received an approved petition from DHS which accords such status and the 
consular officer is satisfied that the alien is within the class 
described in INA 101(a)(27)(H).
    (5) Certain international organization and NATO civilian employees--
(i) Entitlement to status. An alien is classifiable under INA 203(b)(4) 
as a special immigrant defined in INA 101(a)(27)(I) or (L) if the 
consular officer has received a petition approved by the DHS to accord 
such classification, or official notification of such approval, and the 
consular officer is satisfied from the evidence presented that the alien 
is within one of the classes described therein.
    (ii) Timeliness of application. An alien accorded status under INA 
203(b)(4) because of qualification under INA 101(a)(27)(I) or (L) must 
appear for the final visa interview and issuance of the immigrant visa 
within six months of establishing entitlement to status.
    (6) Certain juvenile court dependents. An alien shall be 
classifiable under INA 203(b)(4) as a special immigrant defined in INA 
101(a)(27)(J) if the consular officer has received from DHS an approved 
petition to accord such status, or an official notification of such an 
approval, and the consular officer is satisfied the alien is within the 
class described in that section.
    (7) Certain members of the United States Armed Forces recruited 
abroad--(i) Entitlement to status. An alien is classifiable under INA 
203(b)(4) as a special immigrant described in INA 101(a)(27)(K) if the 
consular office has received a petition approved by the DHS to accord 
such classification, or official notification of such an approval, and 
the consular officer is satisfied from the evidence presented that the 
alien is within the class described in INA 101(a)(27)(K).
    (ii) Entitlement to derivative status. Pursuant to INA 203(d), and 
whether or not named in the petition, the spouse or child of any alien 
classified under INA 203(b)(4) as a special immigrant qualified under 
this section, if not otherwise entitled to an immigrant status and the 
immediate issuance of a visa, is entitled to a derivative status 
corresponding to the classification and priority date of the beneficiary 
of the petition.
    (8) Certain United States international broadcasting employees--(i) 
Entitlement to status. An alien is classifiable as a special immigrant 
under INA 203(b)(4) as described in INA 101(a)(27)(M), if the consular 
office has received a petition approved by the DHS to accord such 
classification, or official notification of such an approval, and the 
consular officer is satisfied from the evidence presented that the alien 
is within the class described in INA 101(a)(27)(M).

[[Page 207]]

    (ii) Entitlement to derivative status. Pursuant to INA 203(d), and 
whether or not named in the petition, the spouse or child of any alien 
classified under INA 203(b)(4) as a special immigrant qualified under 
this section, if not otherwise entitled to an immigrant status and the 
immediate issuance of a visa, is entitled to derivative status 
corresponding to the classification and priority date of the beneficiary 
of the petition.
    (9) Certain victims of the September 11, 2001 terrorist attacks--(i) 
Entitlement to status. An alien shall be classifiable as a special 
immigrant under INA 203(b)(4) as specified in section 421 of Public Law 
107-56, if:
    (A) The consular officer has received a petition approved by the DHS 
to accord such classification, or official notification of such an 
approval, and the consular officer is satisfied from the evidence 
presented that the alien is entitled to that classification; or
    (B) The alien is the spouse or child of an alien so classified in 
paragraph (d)(9)(i) of this section and is accompanying or following to 
join the principal alien.
    (ii) Ineligibility exemption. An alien classified under paragraph 
(d)(9)(i) of this section shall not be subject to the provisions of INA 
212(a)(4).
    (iii) Priority date. Aliens entitled to status under paragraph 
(d)(9)(i) of this section shall be assigned a priority date as of the 
date the petition was filed under INA 204 for classification under 
section INA 203(b)(4) and visas shall be issued in the chronological 
order of application submission. However, in the event that the annual 
limit for immigrants under INA 203 is reached, the alien may retain the 
earlier priority date of the petition that was revoked.
    (e) Fifth preference--Employment-creation immigrants--(1) 
Entitlement to status. An alien shall be classifiable as a fifth 
preference employment-creation immigrant if the consular officer has 
received from DHS an approved petition to accord such status, or 
official notification of such an approval, and the consular officer is 
satisfied that the alien is within the class described in INA 203(b)(5).
    (2) Entitlement to derivative status. Pursuant to INA 203(d), and 
whether or not named in the petition, the spouse or child of an 
employment-based fifth preference immigrant, if not otherwise entitled 
to an immigrant status and the immediate issuance of a visa, is entitled 
to a derivative status corresponding to the classification and priority 
date of the beneficiary of the petition.

[56 FR 49676, Oct. 1, 1991, as amended at 56 FR 51172, Oct. 10, 1991; 56 
FR 55077, Oct. 24, 1991; 60 FR 35839, July 12, 1995; 63 FR 4394, Jan. 
29, 1998; 63 FR 68393, Dec. 11, 1998; 65 FR 80745, Dec. 22, 2000; 66 FR 
15350, Mar. 19, 2001; 68 FR 24639, May 8, 2003]



Sec. 42.33  Diversity immigrants.

    (a) General--(1) Eligibility to compete for consideration under 
section 203(c). An alien will be eligible to compete for consideration 
for visa issuance under INA 203(c) during a fiscal year only if he or 
she is a native of a low-admission foreign state, as determined by the 
Secretary of Homeland Security pursuant to INA 203(c)(1)(E), with 
respect to the fiscal year in question; and if he or she has at least a 
high school education or its equivalent or, within the five years 
preceding the date of application for a visa, has two years of work 
experience in an occupation requiring at least two years training or 
experience. The eligibility for a visa under INA 203(c) ceases at the 
end of the fiscal year in question. Under no circumstances may a 
consular officer issue a visa or other documentation to an alien after 
the end of the fiscal year during which an alien possesses diversity 
visa eligibility.
    (2) Definition of high school education or its equivalent. For the 
purposes of this section, the phrase high school education or its 
equivalent means the successful completion of a twelve-year course of 
elementary and secondary education in the United States or successful 
completion in another country of a formal course of elementary and 
secondary education comparable to completion of twelve years' elementary 
and secondary education in the United States.
    (3) Determinations of work experience. For all cases registered for 
the 2003 Diversity Visa Program and Diversity

[[Page 208]]

Visa Programs occurring in subsequent fiscal years, consular officers 
must use the Department of Labor's O*Net On Line to determine qualifying 
work experience.
    (4) Limitation on number of petitions per year. No more than one 
petition may be submitted by or on behalf of, any alien for 
consideration during any single fiscal year. If two or more petitions 
for any single fiscal year are submitted by, or on behalf of, any alien, 
all such petitions will be void pursuant to INA 204(a)(1)(I)(i) and the 
alien by or for whom the petition has been submitted will not be 
eligible for consideration for diversity visa issuance during the fiscal 
year in question.
    (5) Northern Ireland. For purposes of determining eligibility to 
file a petition for consideration under INA 203(c) for a fiscal year, 
the districts comprising that portion of the United Kingdom of Great 
Britain and Northern Ireland, known as ``Northern Ireland'', will be 
treated as a separate foreign state. The districts comprising ``Northern 
Ireland'' are Antrim, Ards, Armagh, Ballymena, Ballymoney, Banbridge, 
Belfast, Carrickfergus, Castlereagh, Coleraine, Cookstown, Craigavon, 
Down, Dungannon, Fermanagh, Larne, Limavady, Lisburn, Londonderry, 
Magherafelt, Moyle, Newry and Mourne, Newtownabbey, North Down, Omagh, 
and Strabane.
    (b) Petition requirement. An alien claiming to be entitled to 
compete for consideration under INA 203(c) must file a petition with the 
Department of State for such consideration. At the alien petitioner's 
request, another person may file a petition on behalf of the alien. The 
petition will consist of an electronic entry form that the alien 
petitioner or a person acting on the behalf of the alien petitioner must 
complete on-line and submit to the Department of State via a Web site 
established by the Department of State for the purpose of receiving such 
petitions. The Department will specify the address of the Web site prior 
to the commencement of the 30-day or greater period described in 
paragraph (b)(3) of this section using the notice procedure prescribed 
in that paragraph.
    (1) Information to be provided in the petition. The website will 
include the electronic entry form mentioned in paragraph (b) of this 
section. The entry form will require the person completing the form to 
provide the following information, typed in the Roman alphabet, 
regarding the alien petitioner:
    (i) The petitioner's full name;
    (ii) The petitioner's date and place of birth (including city and 
country, province or other political subdivision of the country);
    (iii) The petitioner's gender;
    (iv) The country of which the petitioner claims to be a native, if 
other than the country of birth;
    (v) The name[s], date[s] and place[s] of birth and gender of the 
petitioner's spouse and child[ren], if any, (including legally adopted 
and step-children), regardless of whether or not they are living with 
the petitioner or intend to accompany or follow to join the petitioner 
should the petitioner immigrate to the United States pursuant to INA 
203(c), but excluding a spouse or a child[ren] who is already a U.S. 
citizen or U.S. lawful permanent resident;
    (vi) A current mailing address for the petitioner;
    (vii) The location of the consular office nearest to the 
petitioner's current residence or, if in the United States, nearest to 
the petitioner's last foreign residence prior to entry into the United 
States;
    (2) Requirements for photographs. The electronic entry form will 
also require inclusion of a recent photograph of the petitioner and of 
his or her spouse and all unmarried children under the age of 21 years. 
The photographs must meet the following specifications:
    (i) A digital image of the applicant from either a digital camera 
source or a scanned photograph via scanner. If scanned, the original 
photographic print must have been 2[sec] by 2[sec] (50mm x 50mm). 
Scanner hardware and digital image resolution requirements will be 
further specified in the public notice described in paragraph (b)(3) of 
this section.
    (ii) The image must be in the Joint Photographic Experts Group 
(JPEG) File Interchange Format (JFIF) format.
    (iii) The image must be in color.

[[Page 209]]

    (iv) The person being photographed must be directly facing the 
camera with the head neither tilted up, down, or to the side. The head 
must cover about 50% of the area of the photograph.
    (v) The photograph must be taken with the person in front of a 
neutral, light-colored background. Photos taken with very dark or 
patterned, busy backgrounds will not be accepted.
    (vi) The person's face must be in focus.
    (vii) The person in the photograph must not wear sunglasses or other 
paraphernalia that detracts from the face.
    (viii) A photograph with the person wearing a head covering or a hat 
is only acceptable if the covering or hat is worn specifically due to 
that person's religious beliefs, and even then, the hat or covering may 
not obscure any portion of the face. A photograph of a person wearing 
tribal, military, airline or other headgear not specifically religious 
in nature will not be accepted.
    (3) Submission of petition. A petition for consideration for visa 
issuance under INA 203(c) must be submitted to the Department of State 
by electronic entry to an Internet website designated by the Department 
for that purpose. No fee will be collected at the time of submission of 
a petition, but a processing fee may be collected at a later date, as 
provided in paragraph (i) of this section. The Department will establish 
a period of not less than thirty days during each fiscal year within 
which aliens may submit petitions for approval of eligibility to apply 
for visa issuance during the following fiscal year. Each fiscal year the 
Department will give timely notice of both the website address and the 
exact dates of the petition submission period, as well as other 
pertinent information, through publication in the Federal Register and 
such other methods as will ensure the widest possible dissemination of 
the information, both abroad and within the United States.
    (c) Processing of petitions. Entries received during the petition 
submission period established for the fiscal year in question and 
meeting all of the requirements of paragraph (b) of this section will be 
assigned a number in a separate numerical sequence established for each 
regional area specified in INA 203(c)(1)(F). Upon completion of the 
numbering of all petitions, all numbers assigned for each region will be 
separately rank-ordered at random by a computer using standard computer 
software for that purpose. The Department will then select in the rank 
orders determined by the computer program a quantity of petitions for 
each region estimated to be sufficient to ensure, to the extent 
possible, usage of all immigrant visas authorized under INA 203(c) for 
the fiscal year in question. The Department will consider petitions 
selected in this manner to have been approved for the purposes of this 
section.
    (d) Validity of approved petitions. A petition approved pursuant to 
paragraph (c) of this section will be valid for a period not to exceed 
Midnight of the last day of the fiscal year for which the petition was 
approved. At that time, the Department of State will consider approval 
of the petition to cease to be valid pursuant to INA 
204(a)(1)(I)(ii)(II), which prohibits issuance of visas based upon 
petitions submitted and approved for a fiscal year after the last day of 
that fiscal year.
    (e) Order of consideration. Consideration for visa issuance to 
aliens whose petitions have been approved pursuant to paragraph (c) of 
this section will be in the regional rank orders established pursuant 
that paragraph.
    (f) Allocation of visa numbers. To the extent possible, diversity 
immigrant visa numbers will be allocated in accordance with INA 
203(c)(1)(E) and will be allotted only during the fiscal year for which 
a petition to accord diversity immigrant status was submitted and 
approved. Under no circumstances will immigrant visa numbers be allotted 
after midnight of the last day of the fiscal year for which the petition 
was submitted and approved.
    (g) Further processing. The Department will inform applicants whose 
petitions have been approved pursuant to paragraph (c) of this section 
of the steps necessary to meet the requirements of INA 222(b) in order 
to apply formally for an immigrant visa.
    (h) Maintenance of certain information. (1) The Department will 
compile and

[[Page 210]]

maintain the following information concerning petitioners to whom 
immigrant visas are issued under INA 203(c):
    (i) Age;
    (ii) Country of birth;
    (iii) Marital status;
    (iv) Sex;
    (v) Level of education; and
    (vi) Occupation and level of occupational qualification.
    (2) The Department will not maintain the names of visa recipients in 
connection with this information and the information will be compiled 
and maintained in such form that the identity of visa recipients cannot 
be determined therefrom.
    (i) Processing fee. In addition to collecting the immigrant visa 
application fee and, if applicable, issuance fees, as provided in Sec. 
42.71(b) of this part, the consular officer must also collect from each 
applicant for a visa under the Diversity Immigrant Visa Program such 
processing fee as the Secretary of State prescribes.

[68 FR 49355, Aug. 18, 2003, as amended at 73 FR 7670, Feb. 11, 2008]



                           Subpart E_Petitions



Sec. 42.41  Effect of approved petition.

    Consular officers are authorized to grant to an alien the immediate 
relative or preference status accorded in a petition approved in the 
alien's behalf upon receipt of the approved petition or official 
notification of its approval. The status shall be granted for the period 
authorized by law or regulation. The approval of a petition does not 
relieve the alien of the burden of establishing to the satisfaction of 
the consular officer that the alien is eligible in all respects to 
receive a visa.

[56 FR 49682, Oct. 1, 1991]



Sec. 42.42  Petitions for immediate relative or preference status.

    Petition for immediate relative or preference status. The consular 
officer may not issue a visa to an alien as an immediate relative 
entitled to status under 201(b), a family-sponsored immigrant entitled 
to preference status under 203(a)(1)-(4), or an employment-based 
preference immigrant entitled to status under INA 203(b)(1)-(5), unless 
the officer has received a petition filed and approved in accordance 
with INA 204 or official notification of such filing and approval.

[56 FR 49682, Oct. 1, 1991]



Sec. 42.43  Suspension or termination of action in petition cases.

    (a) Suspension of action. The consular officer shall suspend action 
in a petition case and return the petition, with a report of the facts, 
for reconsideration by DHS if the petitioner requests suspension of 
action, or if the officer knows or has reason to believe that approval 
of the petition was obtained by fraud, misrepresentation, or other 
unlawful means, or that the beneficiary is not entitled, for some other 
reason, to the status approved.
    (b) Termination of action. (1) The consular officer shall terminate 
action in a petition case upon receipt from DHS of notice of revocation 
of the petition in accordance with DHS regulations.
    (2) The consular officer shall terminate action in a petition case 
subject to the provisions of INA 203(g) in accordance with the 
provisions of Sec. 42.83.

[56 FR 49682, Oct. 1, 1991]



             Subpart F_Numerical Controls and Priority Dates

    Source: 56 FR 51174, Oct. 10, 1991, unless otherwise noted.



Sec. 42.51  Department control of numerical limitations.

    (a) Centralized control. Centralized control of the numerical 
limitations on immigration specified in INA 201, 202, and 203 is 
established in the Department. The Department shall limit the number of 
immigrant visas that may be issued and the number of adjustments of 
status that may be granted to aliens subject to these numerical 
limitations to a number:
    (1) Not to exceed 27 percent of the world-wide total made available 
under INA 203 (a), (b) and (c) in any of the first three quarters of any 
fiscal year; and
    (2) Not to exceed, in any month of a fiscal year, 10% of the world-
wide total made available under INA 203 (a), (b) and (c) plus any 
balance remaining

[[Page 211]]

from authorizations for preceding months in the same fiscal year.
    (b) Allocation of numbers. Within the foregoing limitations, the 
Department shall allocate immigrant visa numbers for use in connection 
with the issuance of immigrant visas and adjustments based on the 
chronological order of the priority dates of visa applicants classified 
under INA 203 (a) and (b) reported by consular officers pursuant to 
Sec. 42.55(b) and of applicants for adjustment of status as reported by 
officers of the DHS, taking into account the requirements of INA 202(e) 
in such allocations. In the case of applicants under INA 203(c), visa 
numbers shall be allocated within the limitation for each specified 
geographical region in the random order determined in accordance with 
sec. 42.33(c) of this part.
    (c) Recaptured visa numbers. An immigrant visa number shall be 
returned to the Department for reallocation within the fiscal year in 
which the visa was issued when:
    (1) An immigrant having an immigrant visa is excluded from the 
United States and deported;
    (2) An immigrant does not apply for admission to the United States 
before the expiration of the validity of the visa;
    (3) An alien having a preference immigrant visa is found not to be a 
preference immigrant; or
    (4) An immigrant visa is revoked pursuant to Sec. 42.82.

[56 FR 51174, Oct. 10, 1991, as amended at 59 FR 15302, Mar. 31, 1994; 
63 FR 48578, Sept. 11, 1998]



Sec. 42.52  Post records of visa applications.

    (a) Waiting list. Records of individual visa applicants entitled to 
an immigrant classification and their priority dates shall be maintained 
at posts at which immigrant visas are issued. These records shall 
indicate the chronological and preferential order in which consideration 
may be given to immigrant visa applications within the several immigrant 
classifications subject to the numerical limitations specified in INA 
201, 202, and 203. Similar records shall be kept for the classes 
specified in INA 201(b)(2) and 101(a)(27) (A) and (B) which are not 
subject to numerical limitations. The records which pertain to 
applicants subject to numerical limitations constitute ``waiting lists'' 
within the meaning of INA 203(e)(3) as redesignated by the Immigration 
Act of 1990.
    (b) Entitlement to immigrant classification. An alien shall be 
entitled to immigrant classification if the alien:
    (1) Is the beneficiary of an approved petition according immediate 
relative or preference status;
    (2) Has satisfied the consular officer that the alien is entitled to 
special immigrant status under INA(101)(a)(27) (A) or (B);
    (3) Is entitled to status as a Vietnam Amerasian under section 
584(b)(1) of section 101(e) of Public Law 100-202 as amended by Public 
Law 101-167 and re-amended by Public Law 101-513; or
    (4) Beginning in FY-95, is entitled to status as a diversity 
immigrant under INA 203(c).
    (c) Record made when entitlement to immigrant classification is 
established. (1) A record that an alien is entitled to an immigrant visa 
classification shall be made on Form OF-224, Immigrant Visa Control 
Card, or through the automated system in use at selected posts, whenever 
the consular officer is satisfied--or receives evidence--that the alien 
is within the criteria set forth in paragraph (b) of this section.
    (2) A separate record shall be made of family members entitled to 
derivative immigrant status whenever the consular officer determines 
that a spouse or child is chargeable to a different foreign state or 
other numerical limitation than the principal alien. The provisions of 
INA 202(b) are to be applied as appropriate when either the spouse or 
parent is reached on the waiting list.
    (3) A separate record shall be made of a spouse or child entitled to 
derivative immigrant status whenever the consular officer determines 
that the principal alien intends to precede the family.

[56 FR 51174, Oct. 9, 1991, as amended at 61 FR 1836, Jan. 24, 1996]



Sec. 42.53  Priority date of individual applicants.

    (a) Preference applicant. The priority date of a preference visa 
applicant

[[Page 212]]

under INA 203 (a) or (b) shall be the fiing date of the approved 
petition that accorded preference status.
    (b) Former Western Hemisphere applicant with priority date prior to 
January 1, 1977. Notwithstanding the provisions of paragraph (a) of this 
section, an alien who, prior to January 1, 1977, was subject to the 
numerical limitation specified in section 21(e) of the Act of October 3, 
1965, and who was registered as a Western Hemisphere immigrant with a 
priority date prior to January 1, 1977, shall retain that priority date 
as a preference immigrant upon approval of a petition according status 
under INA 203 (a) or (b).
    (c) Derivative priority date for spouse or child of principal alien. 
A spouse or child of a principal alien acquired prior to the principal 
alien's admission shall be entitled to the priority date of the 
principal alien, whether or not named in the immigrant visa application 
of the principal alien. A child born of a marriage which existed at the 
time of a principal alien's admission to the United States is considered 
to have been acquired prior to the principal alien's admission.



Sec. 42.54  Order of consideration.

    (a) General. Consular officers shall request applicants to take the 
steps necessary to meet the requirements of INA 222(b) in order to apply 
formally for a visa as follows:
    (1) In the chronological order of the priority dates of all 
applicants within each of the immigrant classifications specified in INA 
203 (a) and (b); and
    (2) In the random order established by the Secretary of State for 
each region for the fiscal year for applicants entitled to status under 
INA 203(c).
    (b) [Reserved]

[56 FR 51174, Oct. 10, 1991, as amended at 59 FR 15302, Mar. 31, 1994; 
61 FR 1836, Jan. 24, 1996; 63 FR 48578, Sept. 11, 1998]



Sec. 42.55  Reports on numbers and priority dates of applications on record.

    (a) Consular officers shall report periodically, as the Department 
may direct, the number and priority dates of all applicants subject to 
the numerical limitations prescribed in INA 201, 202, and 203 whose 
immigrant visa applications have been recorded in accordance with Sec. 
42.52(c).
    (b) Documentarily qualified applicants. Consular officers shall also 
report periodically, as the Department may direct, the number and 
priority dates of all applicants described in paragraph (a) of this 
section who have informed the consular office that they have obtained 
the documents required under INA 222(b), for whom the necessary 
clearance procedures have been completed.

[56 FR 51174, Oct. 10, 1991, as amended at 61 FR 1836, Jan. 24, 1996]



                Subpart G_Application for Immigrant Visas



Sec. 42.61  Place of application.

    (a) Alien to apply in consular district of residence. Unless 
otherwise directed by the Department, an alien applying for an immigrant 
visa shall make application at the consular office having jurisdiction 
over the alien's place of residence; except that, unless otherwise 
directed by the Department, an alien physically present in an area but 
having no residence therein may make application at the consular office 
having jurisdiction over that area if the alien can establish that he or 
she will be able to remain in the area for the period required to 
process the application. Finally, a consular office may, as a matter of 
discretion, or shall, at the direction of the Department, accept an 
immigrant visa application from an alien who is neither a resident of, 
nor physically present in, the area designated for that office for such 
purpose. For the purposes of this section, an alien physically present 
in the United States shall be considered to be a resident of the area of 
his or her last residence prior to entry into the United States.
    (b) Transfer of immigrant visa cases. (1) All documents, papers, and 
other evidence relating to an applicant whose case is pending or has 
been refused at one post may be transferred to another post at the 
applicant's request and risk when there is reasonable justification for 
the transfer and the transferring post has no reason to believe that the 
alien will be unable to appear at the receiving post.

[[Page 213]]

    (2) Any approved petition granting immediate relative or preference 
status should be included among the documents when a case is transferred 
from one post to another.
    (3) In no case may a visa number be transferred from one post to 
another. A visa number which cannot be used as a result of the transfer 
must be returned to the Department immediately.

[52 FR 42613, Nov. 5, 1987, as amended at 59 FR 39955, Aug. 4, 1994]



Sec. 42.62  Personal appearance and interview of applicant.

    (a) Personal appearance of applicant before consular officer. Every 
alien applying for an immigrant visa, including an alien whose 
application is executed by another person pursuant to Sec. 42.63(a)(2), 
shall be required to appear personally before a consular officer for the 
execution of the application or, if in Taiwan, before a designated 
officer of the American Institute in Taiwan, except that the personal 
appearance of any child under the age of 14 may be waived at the 
officer's discretion.
    (b) Interview by consular officer. Every alien executing an 
immigrant visa application must be interviewed by a consular officer who 
shall determine on the basis of the applicant's representations and the 
visa application and other relevant ducumentation--
    (1) The proper immigrant classification, if any, of the visa 
applicant, and
    (2) The applicant's eligibility to receive a visa.

The officer has the authority to require that the alien answer any 
question deemed material to these determinations.

[52 FR 42613, Nov. 5, 1987, as amended at 56 FR 49682, Oct. 1, 1991]



Sec. 42.63  Application forms and other documentation.

    (a) Application Forms--(1) Application on Form DS-230 Required. 
Every alien applying for an immigrant visa must make application on Form 
DS-230, Application for Immigrant Visa and Alien Registration. This 
requirement may not be waived. Form DS-230 consists of parts I and II 
which, together, are meant in any reference to this Form.
    (2) Application of alien under 14 or physically incapable. The 
application on Form DS-230 for an alien under 14 years of age or one 
physically incapable of completing an application may be executed by the 
alien's parent or guardian, or, if the alien has no parent or guardian, 
by any person having legal custody of, or a legitimate interest in, the 
alien.
    (b) Preparation of forms. The consular officer shall ensure that 
Form DS-230 and all other forms an alien is required to submit are fully 
and properly completed in accordance with the applicable regulations and 
instructions.
    (c) Additional information as part of application. The officer may 
require the submission of additional information or question the alien 
on any relevant matter whenever the officer believes that the 
information provided in Form DS-230 is inadequate to determine the 
alien's eligibility to receive an immigrant visa. Additional statements 
made by the alien become a part of the visa application. All documents 
required under the authority of Sec. 42.62 are considered papers 
submitted with the alien's application within the meaning of INA 
221(g)(1).

[52 FR 42613, Nov. 5, 1987, as amended at 56 FR 49682, Oct. 1, 1991; 61 
FR 1836, Jan. 24, 1996; 71 FR 34522, June 15, 2006]



Sec. 42.64  Passport requirements.

    (a) Passport defined. Passport, as defined in INA 101(a)(30), is not 
limited to a national passport or to a single document. A passport may 
consist of two or more documents which, when considered together, 
fulfill the requirements of a passport, provided that documentary 
evidence of permission to enter a foreign country has been issued by a 
competent authority and clearly meets the requirements of INA 
101(a)(30).
    (b) Passport validity requirements. Except as provided in Sec. 
42.2, every applicant for an immigrant visa shall present a passport, as 
defined in INA 101(a)(30), that is valid for at least 60 days beyond the 
period of validity of the visa. The 60-day additional validity 
requirement does not apply to an applicant who would be excepted as 
provided in Sec. 42.2 were it not for the fact that the applicant is 
applying in the country of which the applicant is a national and

[[Page 214]]

the possession of a passport is required for departure. Such an 
applicant may be issued a visa valid for 6 months or for such shorter 
period as will assure its expiration in unison with the passport.
    (c) A single passport including more than one person. The passport 
requirement of this section may be met by the presentation of a passport 
including more than one person, if such inclusion is authorized under 
the laws or regulations of the issuing authority and if a photograph of 
each person 16 years of age or over is attached to the passport by the 
issuing authority.

[52 FR 42613, Nov. 5, 1987; 53 FR 9112, Mar. 21, 1988, as amended at 63 
FR 48578, Sept. 11, 1998]



Sec. 42.65  Supporting documents.

    (a) Authority to require documents. The consular officer is 
authorized to require documents considered necessary to establish the 
alien's eligibility to receive an immigrant visa. All such documents 
submitted and other evidence presented by the alien, including briefs 
submitted by attorneys or other representatives, shall be considered by 
the officer.
    (b) Basic documents required. An alien applying for an immigrant 
visa shall be required to furnish, if obtainable: A copy of a police 
certificate or certificates; a certified copy of any existing prison 
record, military record, and record of birth; and a certified copy of 
all other records or documents which the consular officer considers 
necessary.
    (c) Definitions. (1) Police certificate means a certification by the 
police or other appropriate authorities reporting information entered in 
their records relating to the alien. In the case of the country of an 
alien's nationality and the country of an alien's current residence (as 
of the time of visa application) the term ``appropriate police 
authorities'' means those of a country, area or locality in which the 
alien has resided for at least six months. In the case of all other 
countries, areas, or localities, the term ``appropriate police 
authorities'' means the authorities of any country, area, or locality in 
which the alien has resided for at least one year. A consular officer 
may require a police certificate regardless of length of residence in 
any country if he or she has reason to believe that a police record 
exists in the country, area, or locality concerned.
    (2) Prison record means an official document containing a report of 
the applicant's record of confinement and conduct in a penal or 
correctional institution.
    (3) Military record means an official document containing a complete 
record of the applicant's service and conduct while in military service, 
including any convictions of crime before military tribunals as 
distinguished from other criminal courts. A certificate of discharge 
from the military forces or an enrollment book belonging to the 
applicant shall not be acceptable in lieu of the official military 
record, unless it shows the alien's complete record while in military 
service. The applicant may, however, be required to present for 
inspection such a discharge certificate or enrollment book if deemed 
necessary by the consular officer to establish the applicant's 
eligibility to receive a visa.
    (4) A certified copy of an alien's record of birth means a 
certificate issued by the official custodian of birth records in the 
country of birth showing the date and place of birth and the parentage 
of the alien, based upon the original registration of birth.
    (5) Other records or documents include any records or documents 
establishing the applicant's relationship to a spouse or children, if 
any, and any records or documents pertinent to a determination of the 
applicant's identity, classification, or any other matter relating to 
the applicant's visa eligibility.
    (d) Unobtainable documents. (1) If the consular officer is 
satisfied, or the catalogue of available documents prepared by the 
Department indicates, that any document or record required under this 
section is unobtainable, the officer may permit the immigrant to submit 
other satisfactory evidence in lieu of such document or record. A 
document or other record shall be considered unobtainable if it cannot 
be procured without causing to the applicant or a family member actual 
hardship as opposed to normal delay and inconvenience.

[[Page 215]]

    (2) If the consular officer determines that a supporting document, 
as described in paragraph (b) of this section, is in fact unobtainable, 
although the catalogue of available documents shows it is available, the 
officer shall affix to the visa application a signed statement 
describing in detail the reasons for considering the record or document 
unobtainable and for accepting the particular secondary evidence 
attached to the visa.
    (e) Authenticity of records and documents. If the consular officer 
has reason to believe that a required record or document submitted by an 
applicant is not authentic or has been altered or tampered with in any 
material manner, the officer shall take such action as may be necessary 
to determine its authenticity or to ascertain the facts to which the 
record or document purports to relate.
    (f) Photographs. Every alien shall furnish color photographs of the 
number and specifications prescribed by the Department, except that, in 
countries where facilities for producing color photographs are 
unavailable as determined by the consular officer, black and white 
photographs may be substituted.

[52 FR 42613, Nov. 5, 1987, as amended at 55 FR 29015, July 17, 1990; 56 
FR 49682, Oct. 1, 1991]



Sec. 42.66  Medical examination.

    (a) Medical examination required of all applicants. Before the 
issuance of an immigrant visa, the consular officer shall require every 
alien, regardless of age, to undergo a medical examination in order to 
determine eligibility to receive a visa.
    (b) Examination by physician from approved panel. The required 
examination shall be conducted in accordance with requirements and 
procedures established by the United States Public Health Service and by 
a physician selected by the alien from a panel of physicians approved by 
the consular officer.
    (c) Facilities required for panel physician. A consular officer 
shall not include the name of a physician on the panel of physicians 
referred to in paragraph (b) of this section unless the physician has 
facilities to perform required serological and X-ray tests or is in a 
position to refer applicants to a qualified laboratory for such tests.



Sec. 42.67  Execution of application, registration, and fingerprinting.

    (a) Execution of visa application--(1) Application fee. A fee is 
prescribed for each application for an immigrant visa. It shall be 
collected prior to the execution of the application and a receipt shall 
be issued.
    (2) Oath and signature. The applicant shall be required to read the 
Form DS-230, Application for Immigrant Visa and Alien Registration, when 
it is completed, or it shall be read to the alien in the alien's 
language, or the alien otherwise informed of its full contents. Aliens 
shall be asked whether they are willing to subscribe thereto. If the 
alien is not willing to subscribe to the application unless changes are 
made in the information stated therein, the required changes shall be 
made. The application shall then be sworn to or affirmed and signed by 
or on behalf of the applicant before a consular officer, or a designated 
officer of the American Institute of Taiwan, who shall then sign the 
application over the officer's title.
    (b) Registration. The alien shall be considered to be registered for 
the purposes of INA 221(b) and 203(g) upon the filing of Form DS-230, 
when duly executed, or the transmission by the Department to the alien 
of a notification of the availability of an immigrant visa, whichever 
occurs first.
    (c)(1) Fingerprinting. An alien may be required at any time prior to 
the execution of Form DS-230 to have a set of fingerprints taken if such 
procedure is necessary for purposes of identification or investigation.
    (2) NCIC name check response. When an automated database name check 
query indicates that an immigrant applicant may have a criminal history 
record indexed in an NCIC database, the applicant shall be required to 
have a set of fingerprints taken in order for the Department to obtain 
such record. The applicant must pay the fingerprint

[[Page 216]]

processing fee as indicated in the schedule of fees found at 22 CFR 
22.1.

[52 FR 42613, Nov. 5, 1987, as amended at 55 FR 29015, July 17, 1990; 56 
FR 49682, Oct. 1, 1991; 67 FR 8478, Feb. 25, 2002; 67 FR 77161, Dec. 17, 
2002; 71 FR 34522, June 15, 2006]



Sec. 42.68  Informal evaluation of family members if principal applicant 

precedes them.

    (a) Preliminary determination of visa eligibility. If a principal 
applicant proposes to precede the family to the United States, the 
consular officer may arrange for an informal examination of the other 
members of the principal applicant's family in order to determine 
whether there exists at that time any mental, physical, or other ground 
of ineligibility on their part to receive a visa.
    (b) When family member ineligible. In the event the consular officer 
finds that any member of such family would be ineligible to receive an 
immigrant visa, the principal applicant shall be informed and required 
to acknowledge receipt of this information in writing.
    (c) No guarantee of future eligibility. A determination in 
connection with an informal examination that an alien appears to be 
eligible for a visa carries no assurance that the alien will be issued 
an immigrant visa in the future. The principal applicant shall be so 
informed and required to acknowledge receipt of this information in 
writing. The question of visa eligibility can be determined definitively 
only at the time the family member applies for a visa.



                  Subpart H_Issuance of Immigrant Visas



Sec. 42.71  Authority to issue visas; visa fees.

    (a) Authority to issue visas. Consular officers may issue immigrant 
visas at designated consular offices abroad pursuant to the authority 
contained in INA 101(a)(16), 221(a), and 224. (Consular offices 
designated to issue immigrant visas are listed periodically in Visa 
Office Bulletins published at www.travel.state.gov by the Department of 
State.) A consular officer assigned to duty in the territory of a 
country against which the sanctions provided in INA 243(d) have been 
invoked must not issue an immigrant visa to an alien who is a national, 
citizen, subject, or resident of that country, unless the officer has 
been informed that the sanction has been waived by DHS in the case of an 
individual alien or a specified class of aliens.
    (b) Immigrant visa fees. The Secretary of State prescribes a fee for 
the processing of immigrant visa applications. An individual registered 
for immigrant visa processing at a post designated for this purpose by 
the Deputy Assistant Secretary for Visa Services must pay the processing 
fee upon being notified that a visa is expected to become available in 
the near future and being requested to obtain the supporting 
documentation needed to apply formally for a visa. A fee collected for 
the processing of an immigrant visa application is refundable only if 
the principal officer of a post or the officer in charge of a consular 
section determines that the application was not adjudicated as a result 
of action by the U. S. Government over which the alien had no control 
and for which the alien was not responsible, that precluded the 
applicant from benefiting from the processing.

[67 FR 38893, June 6, 2002]



Sec. 42.72  Validity of visas.

    (a) Period of validity. With the exception indicated herein, the 
period of validity of an immigrant visa shall not exceed six months, 
beginning with the date of issuance. Any visa issued to a child lawfully 
adopted by a U.S. citizen and spouse while such citizen is serving 
abroad in the U.S. Armed Forces, is employed abroad by the U.S. 
Government, or is temporarily abroad on business, however, shall be 
valid until such time, for a period not to exceed 3 years, as the 
adoptive citizen parent returns to the United States in the course of 
that parent's military service, U.S. Government employment, or business.
    (b) Extension of period of validity. If the visa was originally 
issued for a period of validity less than the maximum authorized by 
paragraph (a) of this section, the consular officer may extend the 
validity of the visa up to but not exceeding the maximum period 
permitted. If an immigrant applies for an extension at a consular office 
other

[[Page 217]]

than the issuing office, the consular officer shall, unless the officer 
is satisfied beyond doubt that the alien is eligible for the extension, 
communicate with the issuing office to determine if there is any 
objection to an extension. In extending the period of validity, the 
officer shall make an appropriate notation on the visa of the new 
expiration date, sign the document with title indicated, and impress the 
seal of the office thereon.
    (c) [Reserved]
    (d) Age and marital status in relation to validity of certain 
immigrant visas. In accordance with Sec. 42.64(b), the validity of a 
visa may not extend beyond a date sixty days prior to the expiration of 
the passport. The period of validity of a visa issued to an immigrant as 
a child shall not extend beyond the day immediately proceding the date 
on which the alien becomes 21 years of age. The consular officer shall 
warn an alien, when appropriate, that the alien will be admissible as 
such an immigrant only if unmarried and under 21 years of age at the 
time of application for admission at a U.S. port of entry. The consular 
officer shall also warn an alien issued a visa as a first or second 
preference immigrant as an unmarried son or daughter of a citizen or 
lawful permanent resident of the United States that the alien will be 
admissible as such an immigrant only if unmarried at the time of 
application for admission at a U.S. port of entry.

[52 FR 42613, Nov. 5, 1987, as amended at 56 FR 32323, July 16, 1991; 61 
FR 1836, Jan. 24, 1996; 62 FR 27694, May 21, 1997; 64 FR 28916, May 28, 
1999; 67 FR 38894, June 6, 2002; 68 FR 13628, Mar. 20, 2003]



Sec. 42.73  Procedure in issuing visas.

    (a) Insertion of data. In issuing an immigrant visa, the issuing 
office shall insert the pertinent information in the designated blank 
spaces provided on Form OF-55B, Immigrant Visa and Alien Registration, 
in accordance with the instructions contained in this section.
    (1) A symbol as specified in Sec. 42.11 shall be used to indicate 
the classification of the immigrant.
    (2) An immigrant visa issued to an alien subject to numerical 
limitations shall bear a number allocated by the Department. The foreign 
state or dependent area limitation to which the alien is chargeable 
shall be entered in the space provided.
    (3) No entry need be made in the space provided for foreign state or 
other applicable area limitation on visas issued to aliens in the 
classifications set forth in Sec. 42.12(a)(1)-(7), but such visas may 
be numbered if a post voluntarily uses a consecutive post numbering 
system.
    (4) The date of issuance and the date of expiration of the visa 
shall be inserted in the proper places on the visa and show the day, 
month, and year in that order, with the name of the month spelled out, 
as in ``24 December 1986.''
    (5) In the event the passport requirement has been waived under 
Sec. 42.2, a notation shall be inserted in the space provided for the 
passport number, setting forth the authority (section and paragraph) 
under which the passport was waived.
    (6) A signed photograph shall be attached in the space provided on 
Form OF-55B by the use of a legend machine, unless specific 
authorization has been granted by the Department to use the impression 
seal.
    (b) Documents comprising an immigrant visa. An immigrant visa 
consists of Form OF-155B and Form DS-230, Application for Immigrant Visa 
and Alien Registration, properly executed, and a copy of each document 
required pursuant to Sec. 42.63.
    (c) Arrangement of visa documentation. Form OF-155B shall be placed 
immediately above Form DS-230 and the supporting documents attached 
thereto. Any document required to be attached to the visa, if furnished 
to the consular officer by the alien's sponsor or other person with a 
request that the contents not be divulged to the visa applicant, shall 
be placed in an envelope and sealed with the impression seal of the 
consular office before being attached to the visa. If an immigrant visa 
is issued to an alien in possession of a United States reentry permit, 
valid or expired, the consular officer shall attach the permit to the 
immigrant visa for disposition by DHS at the port of entry. (Documents 
having no bearing on the alien's qualifications or eligiblity to receive 
a visa may be

[[Page 218]]

returned to the alien or to the person who furnished them.)
    (d) Signature, seal, and issuance of visa. The consular officer 
shall sign the visa (Form OF-155B) and impress the seal of the office on 
it so as to partially cover the photograph and the signature. The 
immigrant visa shall then be issued by delivery to the immigrant or the 
immigrant's authorized agent or representative.

[52 FR 42613, Nov. 5, 1987, as amended at 56 FR 49682, Oct. 1, 1991; 71 
FR 34522, June 15, 2006]



Sec. 42.74  Issuance of new or replacement visas.

    (a) New immigrant visa for a special immigrant under INA 
101(a)(27)(A) and (B). (1) The consular officer may issue a new 
immigrant visa to a qualified alien entitled to status under INA 
101(a)(27)(A) or (B), who establishes:
    (i) That the original visa has been lost, mutilated or has expired, 
or
    (ii) The alien will be unable to use it during the period of its 
validity;
    (2) Provided:
    (i) The alien pays anew the application processing fees prescribed 
in the Schedule of Fees; and
    (ii) The consular officer ascertains whether the original issuing 
office knows of any reason why a new visa should not be issued.
    (b) Replacement immigrant visa for an immediate relative or for an 
alien subject to numerical limitation. (1) A consular officer may issue 
a replacement visa under the original number of a qualified alien 
entitled to status as an immediate relative (INA 201(b)(2)), a family or 
employment preference immigrant (INA 203(a) or (b)), or a diversity 
immigrant (INA 203(c)), if--
    (i) The alien is unable to use the visa during the period of its 
validity due to reasons beyond the alien's control;
    (ii) The visa is issued during the same fiscal year in which the 
original visa was issued, or in the following year, in the case of an 
immediate relative only, if the original number had been reported as 
recaptured;
    (iii) The number has not been returned to the Department as a 
``recaptured visa number'' in the case of a preference or diversity 
immigrant;
    (iv) The alien pays anew the application and processing fees 
prescribed in the Schedule of Fees; and
    (v) The consular officer ascertains whether the original issuing 
office knows of any reason why a new visa should not be issued.
    (2) In issuing a visa under this paragraph (b), the consular officer 
shall insert the word ``REPLACE'' on Form OF-155B, Immigrant Visa and 
Alien Registration, before the word ``IMMIGRANT'' in the title of the 
visa.
    (c) Duplicate visas issued within the validity period of the 
original visa. If the validity of a visa previously issued has not yet 
terminated and the original visa has been lost or mutilated, a duplicate 
visa may be issued containing all of the information appearing on the 
original visa, including the original issuance and expiration dates. The 
applicant shall execute a new application and provide copies of the 
supporting documents submitted in support of the original application. 
The alien must pay anew the application processing fees prescribed in 
the Schedule of Fees. In issuing a visa under this paragraph, the 
consular officer shall insert the word ``DUPLICATE'' on Form OF-155B 
before the word ``IMMIGRANT'' in the title of the visa.

[52 FR 42613, Nov. 5, 1987, as amended at 56 FR 49682, Oct. 1, 1991; 61 
FR 1836, Jan. 24, 1996; 63 FR 4393, Jan. 29, 1998; 67 FR 1416, Jan. 11, 
2002; 67 FR 38894, June 6, 2002; 71 FR 34522, June 15, 2006]



     Subpart I_Refusal, Revocation, and Termination of Registration



Sec. 42.81  Procedure in refusing individual visas.

    (a) Issuance or refusal mandatory. When a visa application has been 
properly completed and executed before a consular officer in accordance 
with the provisions of INA and the implementing regulations, the 
consular officer must either issue or refuse the visa under INA 212(a) 
or INA 221(g) or other applicable law. Every refusal must be in 
conformance with the provisions of 22 CFR 40.6.
    (b) Refusal procedure. A consular officer may not refuse an 
immigrant visa until Form DS-230, Application for Immigrant Visa and 
Alien Registration,

[[Page 219]]

has been executed by the applicant. When an immigrant visa is refused, 
an appropriate record shall be made in duplicate on a form prescribed by 
the Department. The form shall be signed and dated by the consular 
officer. The consular officer shall inform the applicant of the 
provision of law or implementing regulation on which the refusal is 
based and of any statutory provisions under which administrative relief 
is available. Each document related to the refusal shall then be 
attached to Form DS-230 for retention in the refusal files. Any 
documents not related to the refusal shall be returned to the applicant. 
If the grounds of ineligibility may be overcome by the presentation of 
additional evidence and the applicant indicates an intention to submit 
such evidence, all documents may, with the consent of the alien, be 
retained in the consular files for a period not to exceed one year. If 
the refusal has not been overcome within one year, any documents not 
relating to the refusal shall be removed from the file and returned to 
the alien.
    (c) Review of refusal at consular office. If the grounds of 
ineligibility upon which the visa was refused cannot be overcome by the 
presentation of additional evidence, the principal consular officer at a 
post, or a specifically designated alternate, shall review the case 
without delay, record the review decision, and sign and date the 
prescribed form. If the grounds of ineligibility may be overcome by the 
presentation of additional evidence and the applicant indicates the 
intention to submit such evidence, a review of the refusal may be 
deferred. If the principal consular officer or alternate does not concur 
in the refusal, that officer shall either (1) refer the case to the 
Department for an advisory opinion, or (2) assume responsibility for 
final action on the case.
    (d) Review of refusal by Department. The Department may request a 
consular officer in an individual case or in specified classes of cases 
to submit a report if an immigrant visa has been refused. The Department 
will review each report and may furnish an advisory opinion to the 
consular officer for assistance in considering the case further. If the 
officer believes that action contrary to an advisory opinion should be 
taken, the case shall be resubmitted to the Department with an 
explanation of the proposed action. Rulings of the Department concerning 
an interpretation of law, as distinguished from an application of the 
law to the facts, are binding upon consular officers.
    (e) Reconsideration of refusal. If a visa is refused, and the 
applicant within one year from the date of refusal adduces further 
evidence tending to overcome the ground of ineligibility on which the 
refusal was based, the case shall be reconsidered. In such circumstance, 
an additional application fee shall not be required.

[52 FR 42613, Nov. 5, 1987; 53 FR 9112, Mar. 21, 1988, as amended at 66 
FR 10364, Feb. 15, 2001; 71 FR 34522, June 15, 2006]



Sec. 42.82  Revocation of visas.

    (a) Grounds for revocation. Consular officers are authorized to 
revoke an immigrant visa under the following circumstances:
    (1) The consular officer knows, or after investigation is satisfied, 
that the visa was procured by fraud, a willfully false or misleading 
representation, the willful concealment of a material fact, or other 
unlawful means;
    (2) The consular officer obtains information establishing that the 
alien was otherwise ineligible to receive the particular visa at the 
time it was issued; or
    (3) The consular officer obtains information establishing that, 
subsequent to the issuance of the visa, a ground of ineligibility has 
arisen in the alien's case.
    (b) Notice of proposed revocation. The bearer of an immigrant visa 
which is being considered for revocation shall, if practicable, be 
notified of the proposed action, given an opportunity to show cause why 
the visa should not be revoked, and requested to present the visa to the 
consular office indicated in the notification of proposed cancellation.
    (c) Procedure in revoking visas. An immigrant visa which is revoked 
shall be canceled by writing the word ``REVOKED'' plainly across the 
face of the visa. The cancellation shall be dated and signed by the 
consular officer taking the action. The failure of an alien

[[Page 220]]

to present the visa for cancellation does not affect the validity of any 
action taken to revoke it.
    (d) Notice to carriers. Notice of revocation of a visa shall be 
given to the master, commanding officer, 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 canceled as provided in paragraph (c) of this section.
    (e) Notice to Department. The consular officer shall promptly submit 
notice of the revocation, including a full report of the facts in the 
case, to the Department for transmission to the DHS. A report is not 
required if the visa has been physically canceled prior to the alien's 
departure for the United States.
    (f) Record of action. Upon the revocation of an immigrant visa, the 
consular officer shall make appropriate notation for the post file of 
the action taken, including a statement of the reasons therefor, and if 
the revocation of the visa is effected at other than the issuing office, 
a report of the action taken shall be sent to that office.
    (g) Reconsideration of revocation. (1) The consular officer shall 
consider any evidence submitted by the alien or the alien's attorney or 
representative in connection with a request that the revocation of the 
visa 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 
therefore shall be placed in the consular files and appropriate 
notification 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.
    (2) In view of the provisions of Sec. 42.71(b) providing for the 
refund of fees when the visa has not been used as a result of action by 
the U.S. Government, no fees shall be collected in connection with the 
application for or issuance of such a reinstated visa.



Sec. 42.83  Termination of registration.

    (a) Termination following failure of applicant to apply for visa. In 
accordance with INA 203(g), an alien's registration for an immigrant 
visa shall be terminated if, within one year after transmission of a 
notification of the availability of an immigrant visa, the applicant 
fails to apply for an immigrant visa.
    (b) Termination following visa refusal. An alien's registration for 
an immigrant visa shall be terminated if, within one year following the 
refusal of the immigrant visa application under INA 221(g), the alien 
has failed to present to a consular officer evidence purporting to 
overcome the basis for refusal.
    (c) Notice of termination. Upon the termination of registration 
under paragraph (a) of this section, the National Visa Center (NVC) 
shall notify the alien of the termination. The NVC shall also inform the 
alien of the right to have the registration reinstated if the alien, 
before the end of the second year after the missed appointment date if 
paragraph (a) applies, establishes to the satisfaction of the consular 
officer at the post where the alien is registered that the failure to 
apply for an immigrant visa was due to circumstances beyond the alien's 
control. If paragraph (b) applies, the consular officer at the post 
where the alien is registered shall, upon the termination of 
registration, notify the alien of the termination and the right to have 
the registration reinstated if the alien, before the end of the second 
year after the INA 221(g) refusal, establishes to the satisfaction of 
the consular officer at such post that the failure to present evidence 
purporting to overcome the ineligibility under INA 221(g) was due to 
circumstances beyond the alien's control.
    (d) Reinstatement of registration. If the consular officer is 
satisfied that an alien, as provided for in paragraph (c) of this 
section, has established that failure to apply as scheduled for an 
immigrant visa or to present evidence purporting to overcome 
ineligibility under INA 221(g) was due to circumstances beyond the 
alien's control, the consular officer shall reinstate the alien's 
registration for an immigrant visa. Any petition approved under INA 
204(b) which had been automatically revoked as a result of the 
termination of registration shall be considered to be

[[Page 221]]

automatically reinstated if the registration is reinstated.
    (e) Interpretation of ``circumstances beyond alien's control''. For 
the purpose of this section, the term ``circumstances beyond the alien's 
control'' includes, but is not limited to, an illness or other physical 
disability preventing the alien from traveling, a refusal by the 
authorities of the country of an alien's residence to grant the alien 
permission to depart as an immigrant, and foreign military service.

[52 FR 42613, Nov. 5, 1987, as amended at 56 FR 49682, Oct. 1, 1991; 73 
FR 11028, Feb. 29, 2008]

                         PARTS 43-45 [RESERVED]



PART 46_CONTROL OF ALIENS DEPARTING FROM THE UNITED STATES--Table of Contents




Sec.
46.1 Definitions.
46.2 Authority of departure-control officer to prevent alien's departure 
          from the United States.
46.3 Aliens whose departure is deemed prejudicial to the interests of 
          the United States.
46.4 Procedure in case of alien prevented from departing from the United 
          States.
46.5 Hearing procedure before special inquiry officer.
46.6 Departure from the Canal Zone, the Trust Territory of the Pacific 
          Islands, or outlying possessions of the United States.
46.7 Instructions from the Administrator required in certain cases.

    Authority: Secs. 104, 215, 66 Stat. 174, 190; 8 U.S.C. 1104, 1185.



Sec. 46.1  Definitions.

    For the purposes of this part:
    (a) The term alien means any person who is not a citizen or national 
of the United States.
    (b) The term Commissioner means the Commissioner of Immigration and 
Naturalization.
    (c) The term regional commissioner means an officer of the 
Immigration and Naturalization Service duly appointed or designated as a 
regional commissioner, or an officer who has been designated to act as a 
regional commissioner.
    (d) The term district director means an officer of the Immigration 
and Naturalization Service duly appointed or designated as a district 
director, or an officer who has been designated to act as a district 
director.
    (e) The term United States means the several States, the District of 
Columbia, the Canal Zone, Puerto Rico, the Virgin Islands, Guam, 
American Samoa, Swains Island, the Trust Territory of the Pacific 
Islands, and all other territory and waters, continental and insular, 
subject to the jurisdiction of the United States.
    (f) The term continental United States means the District of 
Columbia and the several States, except Alaska and Hawaii.
    (g) The term geographical part of the United States means (1) the 
continental United States, (2) Alaska, (3) Hawaii, (4) Puerto Rico, (5) 
the Virgin Islands, (6) Guam, (7) the Canal Zone, (8) American Samoa, 
(9) Swains Island, or (10) the Trust Territory of the Pacific Islands.
    (h) The term depart from the United States means depart by land, 
water, or air (1) from the United States for any foreign place, or (2) 
from one geographical part of the United States for a separate 
geographical part of the United States: Provided, That a trip or journey 
upon a public ferry, passenger vessel sailing coastwise on a fixed 
schedule, excursion vessel, or aircraft, having both termini in the 
continental United States or in any one of the other geographical parts 
of the United States and not touching any territory or waters under the 
jurisdiction or control of a foreign power, shall not be deemed a 
departure from the United States.
    (i) The term departure-control officer means any immigration officer 
as defined in the regulations of the Immigration and Naturalization 
Service who is designated to supervise the departure of aliens, or any 
officer or employee of the United States designated by the Governor of 
the Canal Zone, the High Commissioner of the Trust Territory of the 
Pacific Islands, or the governor of an outlying possession of the United 
States, to supervise the departure of aliens.

[[Page 222]]

    (j) The term port of departure means a port in the continental 
United States, Alaska, Guam, Hawaii, Puerto Rico or the Virgin Islands, 
designated as a port of entry by the Attorney General or by the 
Commissioner, or in exceptional circumstances such other place as the 
departure-control officer may, in his discretion, designate in an 
individual case, or a port in American Samoa, Swains Island, the Canal 
Zone, or the Trust Territory of the Pacific Islands, designated as a 
port of entry by the chief executive officer thereof.
    (k) The term special inquiry officer shall have the meaning ascribed 
thereto in section 101(b)(4) of the Immigration and Nationality Act.

[22 FR 10827, Dec. 27, 1957, as amended at 25 FR 7022, July 23, 1960]



Sec. 46.2  Authority of departure-control officer to prevent alien's departure 

from the United States.

    (a) No alien shall depart, or attempt to depart, from the United 
States if his departure would be prejudicial to the interests of the 
United States under the provisions of Sec. 46.3. Any departure-control 
officer who knows or has reason to believe that the case of an alien in 
the United States comes within the provisions of Sec. 46.3 shall 
temporarily prevent the departure of such alien from the United States 
and shall serve him with a written temporary order directing him not to 
depart, or attempt to depart, from the United States until notified of 
the revocation of the order.
    (b) The written order temporarily preventing an alien, other than an 
enemy alien, from departing from the United States shall become final 15 
days after the date of service thereof upon the alien, unless prior 
thereto the alien requests a hearing as hereinafter provided. At such 
time as the alien is served with an order temporarily preventing his 
departure from the United States, he shall be notified in writing 
concerning the provisions of this paragraph, and shall be advised of his 
right to request a hearing if entitled thereto under Sec. 46.4. In the 
case of an enemy alien, the written order preventing departure shall 
become final on the date of its service upon the alien.
    (c) Any alien who seeks to depart from the United States may be 
required, in the discretion of the departure-control officer, to be 
examined under oath and to submit for official inspection all documents, 
articles, and other property in his possession which are being removed 
from the United States upon, or in connection with, the alien's 
departure. The departure-control officer may permit such other persons, 
including officials of the Department of State and interpreters, to 
participate in such examination or inspection and may exclude from 
presence at such examination or inspection any person whose presence 
would not further the objectives of such examination or inspection. The 
departure-control officer shall temporarily prevent the departure of any 
alien who refuses to submit to such examination or inspection, and may, 
if necessary to cause the alien to submit to such examination or 
inspection, take possession of the alien's passport or other travel 
document or issue a subpoena requiring the alien to submit to such 
examination or inspection.

[22 FR 10827, Dec. 27, 1957, as amended at 45 FR 64174, Sept. 29, 1980]



Sec. 46.3  Aliens whose departure is deemed prejudicial to the interests of 

the United States.

    The departure from the United States of any alien within one or more 
of the following categories shall be deemed prejudicial to the interest 
of the United States:
    (a) Any alien who is in possession of, and who is believed likely to 
disclose to unauthorized persons, information concerning the plans, 
preparations, equipment, or establishments for the national defense and 
security of the United States.
    (b) Any alien who seeks to depart from the United States to engage 
in, or who is likely to engage in, activities of any kind designed to 
obstruct, impede, retard, delay or counteract the effectiveness of the 
national defense of the United States or the measures adopted by the 
United States or the United Nations for the defense of any other 
country.
    (c) Any alien who seeks to depart from the United States to engage 
in, or who is likely to engage in, activities which would obstruct, 
impede, retard,

[[Page 223]]

delay, or counteract the effectiveness of any plans made or action taken 
by any country cooperating with the United States in measures adopted to 
promote the peace, defense, or safety of the United States or such other 
country.
    (d) Any alien who seeks to depart from the United States for the 
purpose of organizing, directing, or participating in any rebellion, 
insurrection, or violent uprising in or against the United States or a 
country allied with the United States, or of waging war against the 
United States or its allies, or of destroying, or depriving the United 
States of sources of supplies or materials vital to the national defense 
of the United States, or to the effectiveness of the measures adopted by 
the United States for its defense, or for the defense of any other 
country allied with the United States.
    (e) Any alien who is subject to registration for training and 
service in the Armed Forces of the United States and who fails to 
present a Registration Certificate (SSS Form No. 2) showing that he has 
complied with his obligation to register under the Universal Military 
Training and Service Act, as amended.
    (f) Any alien who is a fugitive from justice on account of an 
offense punishable in the United States.
    (g) Any alien who is needed in the United States as a witness in, or 
as a party to, any criminal case under investigation or pending in a 
court in the United States: Provided, That any alien who is a witness 
in, or a party to, any criminal case pending in any criminal court 
proceeding may be permitted to depart from the United States with the 
consent of the appropriate prosecuting authority, unless such alien is 
otherwise prohibited from departing under the provisions of this part.
    (h) Any alien who is needed in the United States in connection with 
any investigation or proceeding being, or soon to be, conducted by any 
official executive, legislative, or judicial agency in the United States 
or by any governmental committee, board, bureau, commission, or body in 
the United States, whether national, state, or local.
    (i) Any alien whose technical or scientific training and knowledge 
might be utilized by an enemy or a potential enemy of the United States 
to undermine and defeat the military and defensive operations of the 
United States or of any nation cooperating with the United States in the 
interests of collective security.
    (j) Any alien, where doubt exists whether such alien is departing or 
seeking to depart from the United States voluntarily except an alien who 
is departing or seeking to depart subject to an order issued in 
extradition, exclusion, or deportation proceedings.
    (k) Any alien whose case does not fall within any of the categories 
described in paragraphs (a) to (j), inclusive, of this section, but 
which involves circumstances of a similar character rendering the 
alien's departure prejudicial to the interests of the United States.

(Sec. 215, Immigration and Nationality Act, 66 Stat. 190, 8 U.S.C. 1185; 
Proc. No. 3004 of January 17, 1953)

[22 FR 10828, Dec. 27, 1957, as amended at 42 FR 19479, Apr. 14, 1977; 
45 FR 64174, Sept. 29, 1980]



Sec. 46.4  Procedure in case of alien prevented from departing from the United 

States.

    (a) Any alien, other than an enemy alien, whose departure has been 
temporarily prevented under the provisions of Sec. 46.2 may, within 15 
days of the service upon him of the written order temporarily preventing 
his departure, request a hearing before a special inquiry officer. The 
alien's request for a hearing shall be made in writing and shall be 
addressed to the district director having administrative jurisdiction 
over the alien's place of residence. If the alien's request for a 
hearing is timely made, the district director shall schedule a hearing 
before a special inquiry officer, and notice of such hearing shall be 
given to the alien. The notice of hearing shall, as specifically as 
security considerations permit, inform the alien of the nature of the 
case against him, shall fix the time and place of the hearing, and shall 
inform the alien of his right to be represented, at no expense to the 
Government, by counsel of his own choosing.
    (b) Every alien for whom a hearing has been scheduled under 
paragraph (a) of this section shall be entitled (1) to

[[Page 224]]

appear in person before the special inquiry officer, (2) to be 
represented by counsel of his own choice, (3) to have the opportunity to 
be heard and to present evidence, (4) to cross-examine the witnesses who 
appear at the hearing, except that if, in the course of the examination, 
it appears that further examination may divulge information of a 
confidential or security nature, the special inquiry officer may, in his 
discretion, preclude further examination of the witness with respect to 
such matters, (5) to examine any evidence in possession of the 
Government which is to be considered in the disposition of the case, 
provided that such evidence is not of a confidential or security nature 
the disclosure of which would be prejudicial to the interests of the 
United States, (6) to have the time and opportunity to produce evidence 
and witnesses on his own behalf, and (7) to reasonable continuances upon 
request, for good cause shown.
    (c) Any special inquiry officer who is assigned to conduct the 
hearing provided for in this section shall have the authority to: (1) 
Administer oaths and affirmations, (2) present and receive evidence, (3) 
interrogate, examine, and cross-examine under oath or affirmation both 
the alien and witnesses, (4) rule upon all objections to the 
introduction of evidence or motions made during the course of the 
hearing, (5) take or cause depositions to be taken, (6) issue subpoenas, 
and (7) take any further action consistent with applicable provisions of 
law, executive orders, proclamations, and regulations.

[22 FR 10828, Dec. 27, 1957, as amended at 27 FR 1358, Feb. 14, 1962]



Sec. 46.5  Hearing procedure before special inquiry officer.

    (a) The hearing before the special inquiry officer shall be 
conducted in accordance with the following procedure:
    (1) The special inquiry officer shall advise the alien of the rights 
and privileges accorded him under the provisions of Sec. 46.4.
    (2) The special inquiry officer shall enter of record (i) a copy of 
the order served upon the alien temporarily preventing his departure 
from the United States, and (ii) a copy of the notice of hearing 
furnished the alien.
    (3) The alien shall be interrogated by the special inquiry officer 
as to the matters considered pertinent to the proceeding, with 
opportunity reserved to the alien to testify thereafter in his own 
behalf, if he so chooses.
    (4) The special inquiry officer shall present on behalf of the 
Government such evidence, including the testimony of witnesses and the 
certificates or written statements of Government officials or other 
persons, as may be necessary and available. In the event such 
certificates or statements are received in evidence, the alien may 
request and, in the discretion of the special inquiry officer, be given 
an opportunity to interrogate such officials or persons, by deposition 
or otherwise, at a time and place and in a manner fixed by the special 
inquiry officer: Provided, That when in the judgment of the special 
inquiry officer any evidence relative to the disposition of the case is 
of a confidential or security nature the disclosure of which would be 
prejudicial to the interests of the United States, such evidence shall 
not be presented at the hearing but shall be taken into consideration in 
arriving at a decision in the case.
    (5) The alien may present such additional evidence, including the 
testimony of witnesses, as is pertinent and available.
    (b) A complete verbatim transcript of the hearing, except statements 
made off the record, shall be recorded. The alien shall be entitled, 
upon request, to the loan of a copy of the transcript, without cost, 
subject to reasonable conditions governing its use.
    (c) Following the completion of the hearing, the special inquiry 
officer shall make and render a recommended decision in the case, which 
shall be governed by and based upon the evidence presented at the 
hearing and any evidence of a confidential or security nature which the 
Government may have in its possession. The decision of the special 
inquiry officer shall recommend (1) that the temporary order preventing 
the departure of the alien from the United States be made final, or (2) 
that the temporary order preventing the departure of the alien from

[[Page 225]]

the United States be revoked. This recommended decision of the special 
inquiry officer shall be made in writing and shall set forth the 
officer's reasons for such decision. The alien concerned shall at his 
request be furnished a copy of the recommended decision of the special 
inquiry officer, and shall be allowed a reasonable time, not to exceed 
10 days, in which to submit representations with respect thereto in 
writing.
    (d) As soon as practicable after the completion of the hearing and 
the rendering of a decision by the special inquiry officer, the district 
director shall forward the entire record of the case, including the 
recommended decision of the special inquiry officer and any written 
representations submitted by the alien, to the regional commissioner 
having jurisdiction over his district. After reviewing the record, the 
regional commissioner shall render a decision in the case, which shall 
be based upon the evidence in the record and on any evidence or 
information of a confidential or security nature which he deems 
pertinent. Whenever any decision is based in whole or in part on 
confidential or security information not included in the record, the 
decision shall state that such information was considered. A copy of the 
regional commissioner's decision shall be furnished the alien, or his 
attorney or representative. No administrative appeal shall lie from the 
regional commissioner's decision.
    (e) Notwithstanding any other provision of this part, the 
Administrator of the Bureau of Security and Consular Affairs referred to 
in section 104(b) of the Immigration and Nationality Act, or such other 
officers of the Department of State as he may designate, after 
consultation with the Commissioner, or such other officers of the 
Immigration and Naturalization Service as he may designate, may at any 
time permit the departure of an individual alien or of a group of aliens 
from the United States if he determines that such action would be in the 
national interest. If the Administrator specifically requests the 
Commissioner to prevent the departure of a particular alien or of a 
group of aliens, the Commissioner shall not permit the departure of such 
alien or aliens until he has consulted with the Administrator.
    (f) In any case arising under Sec. Sec. 46.1 to 46.7, the 
Administrator shall, at his request, be kept advised, in as much detail 
as he may indicate is necessary, of the facts and of any action taken or 
proposed.

[22 FR 10828, Dec. 27, 1957, as amended at 26 FR 3069, Apr. 11, 1961; 27 
FR 1358, Feb. 14, 1962]



Sec. 46.6  Departure from the Canal Zone, the Trust Territory of the Pacific 

Islands, or outlying possessions of the United States.

    (a) In addition to the restrictions and prohibitions imposed by the 
provisions of this part upon the departure of aliens from the United 
States, any alien who seeks to depart from the Canal Zone, the Trust 
Territory of the Pacific Islands, or an outlying possession of the 
United States shall comply with such other restrictions and prohibitions 
as may be imposed by regulations prescribed, with the concurrence of the 
Administrator of the Bureau of Security and Consular Affairs and the 
Commissioner, by the Governor of the Canal Zone, the High Commissioner 
of the Trust Territory of the Pacific Islands, or by the governor of an 
outlying possession of the United States, respectively. No alien shall 
be prevented from departing from such zone, territory, or possession 
without first being accorded a hearing as provided in Sec. Sec. 46.4 
and 46.5.
    (b) The Governor of the Canal Zone, the High Commissioner of the 
Trust Territory of the Pacific Islands, or the governor of any outlying 
possession of the United States shall have the authority to designate 
any employee or class of employees of the United States as hearing 
officers for the purpose of conducting the hearing referred to in 
paragraph (a) of this section. The hearing officer so designated shall 
exercise the same powers, duties, and functions as are conferred upon 
special inquiry officers under the provisions of this part. The chief 
executive officer of such zone, territory, or possession shall, in lieu 
of the regional commissioner, review the recommended decision of the 
hearing officer, and shall render a decision in any case referred

[[Page 226]]

to him, basing it on evidence in the record and on any evidence or 
information of a confidential or a security nature which he deems 
pertinent.

[22 FR 10829, Dec. 27, 1957, as amended at 26 FR 3069, Apr. 11, 1961]



Sec. 46.7  Instructions from the Administrator required in certain cases.

    In the absence of appropriate instructions from the Administrator of 
the Bureau of Security and Consular Affairs, departure-control officers 
shall not exercise the authority conferred by Sec. 46.2 in the case of 
any alien who seeks to depart from the United States in the status of a 
nonimmigrant under section 101(a)(15) (A) or (G) of the Immigration and 
Nationality Act, or in the status of a nonimmigrant under section 11(3), 
11 (4), or 11(5) of the Agreement between the United Nations and the 
United States of America regarding the Headquarters of the United 
Nations (61 Stat. 756): Provided, That in cases of extreme urgency, 
where the national security so requires, a departure-control officer may 
preliminarily exercise the authority conferred by Sec. 46.2 pending the 
outcome of consultation with the Administrator, which shall be 
undertaken immediately. In all cases arising under this section, the 
decision of the Administrator shall be controlling: Provided, That any 
decision to prevent the departure of an alien shall be based upon a 
hearing and record as prescribed in this part.

[26 FR 3069, Apr. 11, 1961; 26 FR 3188, Apr. 14, 1961]

                           PART 47 [RESERVED]

[[Page 227]]



                 SUBCHAPTER F_NATIONALITY AND PASSPORTS



PART 50_NATIONALITY PROCEDURES--Table of Contents




Sec.
50.1 Definitions.

Subpart A_Procedures for Determination of United States Nationality of a 
                              Person Abroad

50.2 Determination of U.S. nationality of persons abroad.
50.3 Application for registration.
50.4 Application for passport.
50.5 Application for registration of birth abroad.
50.6 Registration at the Department of birth abroad.
50.7 Consular Report of Birth Abroad of a Citizen of the United States 
          of America.
50.8 Certification of Report of Birth Abroad of a United States Citizen.
50.9 Card of identity.
50.10 Certificate of nationality.
50.11 Certificate of identity for travel to the United States to apply 
          for admission.

            Subpart B_Retention and Resumption of Nationality

50.20 Retention of nationality.
50.30 Resumption of nationality.

                      Subpart C_Loss of Nationality

50.40 Certification of loss of U.S. nationality.
50.50 Renunciation of nationality.
50.51 Review of finding of loss of nationality.

    Authority: 22 U.S.C. 2651a; 8 U.S.C. 1104 and 1401 through 1504.

    Source: 31 FR 13537, Oct. 20, 1966, unless otherwise noted.



Sec. 50.1  Definitions.

    The following definitions shall be applicable to this part:
    (a) United States means the continental United States, the State of 
Hawaii, the Commonwealth of Puerto Rico, the Virgin Islands of the 
United States, the Canal Zone, American Samoa, Guam and any other 
islands or territory over which the United States exercises 
jurisdiction.
    (b) Department means the Department of State of the United States of 
America.
    (c) Secretary means the Secretary of State.
    (d) National means a citizen of the United States or a noncitizen 
owing permanent allegiance to the United States.
    (e) Passport means a travel document issued under the authority of 
the Secretary of State attesting to the identity and nationality of the 
bearer.
    (f) Passport Agent means a person designated by the Department to 
accept passport applications.
    (g) Designated nationality examiner means a United States citizen 
employee of the Department of State assigned or employed abroad 
(permanently or temporarily) and designated by the Deputy Assistant 
Secretary of State for Overseas Citizen Services, to grant, issue and 
verify U.S. passports. A designated nationality examiner may adjudicate 
claims of acquisition and loss of United States nationality and 
citizenship as required for the purpose of providing passport and 
related services. The authority of designated nationality examiners 
shall include the authority to examine, adjudicate, approve and deny 
passport applications and applications for related services. The 
authority of designated nationality examiners shall expire upon 
termination of the employee's assignment for such duty and may also be 
terminated at any time by the Deputy Assistant Secretary for Overseas 
Citizen Services.

[31 FR 13537, Oct. 20, 1966, as amended at 31 FR 14521, Nov. 11, 1966; 
61 FR 43311, Aug. 22, 1996]



Subpart A_Procedures for Determination of United States Nationality of a 
                              Person Abroad



Sec. 50.2  Determination of U.S. nationality of persons abroad.

    The Department shall determine claims to United States nationality 
when made by persons abroad on the basis of an application for 
registration, for a passport, or for a Consular Report of Birth Abroad 
of a Citizen of the

[[Page 228]]

United States of America. Such determinations of nationality may be made 
abroad by a consular officer or a designated nationality examiner. A 
designated nationality examiner may accept and approve/disapprove 
applications for registration and accept and approve/disapprove 
applications for passports and issue passports. Under the supervision of 
a consular officer, designated nationality examiners shall accept, 
adjudicate, disapprove and provisionally approve applications for the 
Consular Report of Birth Abroad. A Consular Report of Birth Abroad may 
only be issued by a consular officer, who will review a designated 
nationality examiner's provisional approval of an application for such 
report and issue the report if satisfied that the claim to nationality 
has been established.

[31 FR 13537, Oct. 20, 1966, as amended at 61 FR 43311, Aug. 22, 1996]



Sec. 50.3  Application for registration.

    (a) A person abroad who claims U.S. nationality, or a representative 
on his behalf, may apply at a consular post for registration to 
establish his claim to U.S. nationality or to make his residence in the 
particular consular area a matter of record.
    (b) The applicant shall execute the registration form prescribed by 
the Department and shall submit the supporting evidence required by 
subpart C of part 51 of this chapter. A diplomatic or consular officer 
or a designated nationality examiner shall determine the period of time 
for which the registration will be valid.

[31 FR 13537, Oct. 20, 1966, as amended at 61 FR 43312, Aug. 22, 1996]



Sec. 50.4  Application for passport.

    A claim to U.S. nationality in connection with an application for 
passport shall be determined by posts abroad in accordance with the 
regulations contained in part 51 of this chapter.



Sec. 50.5  Application for registration of birth abroad.

    Upon application by the parent(s) or the child's legal guardian, a 
consular officer or designated nationality examiner may accept and 
adjudicate the application for a Consular Report of Birth Abroad of a 
Citizen of the United States of America for a child born in their 
consular district. In specific instances, the Department may authorize 
consular officers and other designated employees to adjudicate the 
application for a Consular Report of Birth Abroad of a child born 
outside his/her consular district. Under the supervision of a consular 
officer, designated nationality examiners shall accept, adjudicate, 
disapprove and provisionally approve applications for the Consular 
Report of Birth Abroad. The applicant shall be required to submit proof 
of the child's birth, identity and citizenship meeting the evidence 
requirements of subpart C of part 51 of this subchapter and shall 
include:
    (a) Proof of child's birth. Proof of child's birth usually consists 
of, but is not limited to, an authentic copy of the record of the birth 
filed with local authorities, a baptismal certificate, a military 
hospital certificate of birth, or an affidavit of the doctor or the 
person attending the birth. If no proof of birth is available, the 
person seeking to register the birth shall submit his affidavit 
explaining why such proof is not available and setting forth the facts 
relating to the birth.
    (b) Proof of child's citizenship. Evidence of parent's citizenship 
and, if pertinent, evidence of parent's physical presence in the United 
States as required for transmittal of claim of citizenship by the 
Immigration and Nationality Act of 1952 shall be submitted.

[31 FR 13537, Oct. 20, 1966, as amended at 61 FR 43312, Aug. 22, 1996]



Sec. 50.6  Registration at the Department of birth abroad.

    In the time of war or national emergency, passport agents may be 
designated to complete consular reports of birth for children born at 
military facilities which are not under the jurisdiction of a consular 
office. An officer of the Armed Forces having authority to administer 
oaths may take applications for registration under this section.

[[Page 229]]



Sec. 50.7  Consular Report of Birth Abroad of a Citizen of the United States 

of America.

    (a) Upon application and the submission of satisfactory proof of 
birth, identity and nationality, and at the time of the reporting of the 
birth, the consular officer may issue to the parent or legal guardian, 
when approved and upon payment of a prescribed fee, a Consular Report of 
Birth Abroad of a Citizen of the United States of America.
    (b) Amended and replacement Consular Reports of Birth Abroad of a 
Citizen of the United States of America may be issued by the Department 
of State's Passport Office upon written request and payment of the 
required fee.
    (c) When it reports a birth under Sec. 50.6, the Department shall 
furnish the Consular Report of Birth Abroad of a Citizen of the United 
States of America to the parent or legal guardian upon application and 
payment of required fees.
    (d) A consular report of birth, or a certification thereof, may be 
canceled if it appears that such document was illegally, fraudulently, 
or erroneously obtained, or was created through illegality or fraud. The 
cancellation under this paragraph of such a document purporting to show 
the citizenship status of the person to whom it was issued shall affect 
only the document and not the citizenship status of the person in whose 
name the document was issued. A person for or to whom such document has 
been issued or made shall be given at such person's last known address, 
written notice of the cancellation of such document, together with the 
specific reasons for the cancellation and the procedures for review 
available under the provisions in 22 CFR 51.81 through 51.89.

[61 FR 43312, Aug. 22, 1996, as amended at 64 FR 19714, Apr. 22, 1999]



Sec. 50.8  Certification of Report of Birth Abroad of a United States Citizen.

    At any time subsequent to the issuance of a Consular Report of Birth 
Abroad of a Citizen of the United States of America, when requested and 
upon payment of the required fee, the Department of State's Passport 
Office may issue to the citizen, the citizen's parent or legal guardian 
a certificate entitled ``Certification of Report of Birth Abroad of a 
United States Citizen.''

[61 FR 43312, Aug. 22, 1996]



Sec. 50.9  Card of identity.

    When authorized by the Department, consular offices or designated 
nationality examiners may issue a card of identity for travel to the 
United States to nationals of the United States being deported from a 
foreign country, to nationals/citizens of the United States involved in 
a common disaster abroad, or to a returning national of the United 
States to whom passport services have been denied or withdrawn under the 
provisions of this part or parts 51 or 53 of this subchapter.

[61 FR 43312, Aug. 22, 1996]



Sec. 50.10  Certificate of nationality.

    (a) Any person who acquired the nationality of the United States at 
birth and who is involved in any judicial or administrative proceedings 
in a foreign state and needs to establish his U.S. nationality may apply 
for a certificate of nationality in the form prescribed by the 
Department.
    (b) An applicant for a certificate of nationality must submit 
evidence of his nationality and documentary evidence establishing that 
he is involved in judicial or administrative proceedings in which proof 
of his U.S. nationality is required.



Sec. 50.11  Certificate of identity for travel to the United States to apply 

for admission.

    (a) A person applying abroad for a certificate of identity under 
section 360(b) of the Immigration and Nationality Act shall complete the 
application form prescribed by the Department and submit evidence to 
support his claim to U.S. nationality.
    (b) When a diplomatic or consular officer denies an application for 
a certificate of identity under this section, the applicant may submit a 
written appeal to the Secretary, stating the pertinent facts, the 
grounds upon which U.S. nationality is claimed and his reasons for

[[Page 230]]

considering that the denial was not justified.

[31 FR 14521, Nov. 11, 1966]



            Subpart B_Retention and Resumption of Nationality



Sec. 50.20  Retention of nationality.

    (a) Section 351(b) of the Immigration and Nationality Act. (1) A 
person who desires to claim U.S. nationality under the provisions of 
section 351(b) of the Immigration and Nationality Act must, within the 
time period specified in the statute, assert a claim to U.S. nationality 
and subscribe to an oath of allegiance before a diplomatic or consular 
officer.
    (2) In addition, the person shall submit to the Department a 
statement reciting the person's identity and acquisition or derivation 
of U.S. nationality, the facts pertaining to the performance of any act 
which would otherwise have been expatriative, and his desire to retain 
his U.S. nationality.

[31 FR 13537, Oct. 20, 1966, as amended at 61 FR 29652, 29653, June 12, 
1996]



Sec. 50.30  Resumption of nationality.

    (a) Section 324(c) of the Immigration and Nationality Act. (1) A 
woman formerly a citizen of the United States at birth who wishes to 
regain her citizenship under section 324(c) of the Immigration and 
Nationality Act may apply abroad to a diplomatic or consular officer on 
the form prescribed by the Department to take the oath of allegiance 
prescribed by section 337 of that Act.
    (2) The applicant shall submit documentary evidence to establish her 
eligibility to take the oath of allegiance. If the diplomatic or 
consular officer or the Department determines, when the application is 
submitted to the Department for decision, that the applicant is 
ineligible for resumption of citizenship because of section 313 of the 
Immigration and Nationality Act, the oath shall not be administered.
    (b) The Act of June 25, 1936. (1) A woman who has been restored to 
citizenship by the Act of June 25, 1936, as amended by the Act of July 
2, 1940, but who failed to take the oath of allegiance prior to December 
24, 1952, as prescribed by the nationality laws, may apply abroad to any 
diplomatic or consular officer to take the oath of allegiance as 
prescribed by section 337 of the Immigration and Nationality Act.
    (2) The applicant shall submit documentary evidence to establish her 
eligibility to take the oath of allegiance. If the diplomatic or 
consular officer or the Department determines, when the application is 
submitted to the Department, that the applicant is ineligible for 
resumption of citizenship under section 313 of the Immigration and 
Nationality Act, the oath shall not be administered.
    (c) Certification of repatriation. Upon request and payment of the 
prescribed fee, a diplomatic or consular officer or the Department shall 
issue a certified copy of the application and oath administered to a 
woman repatriated under this section.
    (d) Section 324(d)(1) of the Immigration and Nationality Act. (1) A 
former citizen of the United States who did not retain U.S. citizenship 
by failure to fulfill residency requirements as set out in Section 
201(g) of the 1940 Nationality Act or former 301(b) of the 1952 
Immigration and Nationality Act, may regain his/her U.S. citizenship 
pursuant to Section 324(d) INA, by applying abroad at a diplomatic or 
consular post, or in the U.S. at any Immigration and Naturalization 
Service office in the form and manner prescribed by the Department of 
State and the Immigration and Naturalization Service (INS).
    (2) The applicant shall submit documentary evidence to establish 
eligibility to take the oath of allegiance, which includes proof of 
birth abroad to a U.S. citizen parent between May 24, 1934 and December 
24, 1952. If the diplomatic, consular, INS, or passport officer 
determines that the applicant is ineligible to regain citizenship under 
section 313 INA, the oath shall not be administered.

[31 FR 13537, Oct. 20, 1966, as amended at 61 FR 29653, June 12, 1996]



                      Subpart C_Loss of Nationality



Sec. 50.40  Certification of loss of U.S. nationality.

    (a) Administrative presumption. In adjudicating potentially 
expatriating

[[Page 231]]

acts pursuant to INA 349(a), the Department has adopted an 
administrative presumption regarding certain acts and the intent to 
commit them. U.S. citizens who naturalize in a foreign country; take a 
routine oath of allegiance; or accept non-policy level employment with a 
foreign government need not submit evidence of intent to retain U.S. 
nationality. In these three classes of cases, intent to retain U.S. 
citizenship will be presumed. A person who affirmatively asserts to a 
consular officer, after he or she has committed a potentially 
expatriating act, that it was his or her intent to relinquish U.S. 
citizenship will lose his or her U.S. citizenship. In other loss of 
nationality cases, the consular officer will ascertain whether or not 
there is evidence of intent to relinquish U.S. nationality.
    (b) Whenever a person admits that he or she had the intent to 
relinquish citizenship by the voluntary and intentional performance of 
one of the acts specified in Section 349(a) of the Immigration and 
Nationality Act, and the person consents to the execution of an 
affidavit to that effect, the diplomatic or consular officer shall 
attach such affidavit to the certificate of loss of nationality.
    (c) Whenever a diplomatic or consular officer has reason to believe 
that a person, while in a foreign country, has lost his U.S. nationality 
under any provision of chapter 3 of title III of the Immigration and 
Nationality Act of 1952, or under any provision of chapter IV of the 
Nationality Act of 1940, as amended, he shall prepare a certificate of 
loss of nationality containing the facts upon which such belief is based 
and shall forward the certificate to the Department.
    (d) If the diplomatic or consular officer determines that any 
document containing information relevant to the statements in the 
certificate of loss of nationality should not be attached to the 
certificate, the person may summarize the pertinent information in the 
appropriate section of the certificate and send the documents together 
with the certificate to the Department.
    (e) If the certificate of loss of nationality is approved by the 
Department, a copy shall be forwarded to the Immigration and 
Naturalization Service, Department of Justice. The diplomatic or 
consular office in which the certificate was prepared shall then forward 
a copy of the certificate to the person to whom it relates or his 
representative.

[31 FR 13537, Oct. 20, 1996. Redesignated and amended at 61 FR 29652, 
June 12, 1996; 63 FR 20315, Apr. 24, 1998]



Sec. 50.50  Renunciation of nationality.

    (a) A person desiring to renounce U.S. nationality under section 
349(a)(5) of the Immigration and Nationality Act shall appear before a 
diplomatic or consular officer of the United States in the manner and 
form prescribed by the Department. The renunciant must include on the 
form he signs a statement that he absolutely and entirely renounces his 
U.S. nationality together with all rights and privileges and all duties 
of allegiance and fidelity thereunto pertaining.
    (b) The diplomatic or consular officer shall forward to the 
Department for approval the oath of renunciation together with a 
certificate of loss of nationality as provided by section 358 of the 
Immigration and Nationality Act. If the officer's report is approved by 
the Department, copies of the certificate shall be forwarded to the 
Immigration and Naturalization Service, Department of Justice, and to 
the person to whom it relates or his representative.

[31 FR 13537, Oct. 20, 1966, as amended at 61 FR 29653, June 12, 1996]



Sec. 50.51  Review of finding of loss of nationality.

    (a) There are no prescribed ``procedures for administrative appeal'' 
of issuance of a Certificate of Loss of Nationality for purposes of 
Sec. 358 of the Immigration and Nationality Act (8 U.S.C. 1501) and no 
mandatory administrative review procedure prior to resort to judicial 
processes under Sec. 360 of the Immigration and Nationality Act (8 
U.S.C. 1503). Nevertheless, the Department may in its discretion review 
determinations of loss of nationality at any time after approval of 
issuance of the Certificate of Loss of Nationality to ensure consistency 
with governing law (see INA Sec. Sec. 349 and 356, 8 U.S.C. 1481 and 
1488). Such reconsideration may be initiated at the request of the 
person

[[Page 232]]

concerned or another person determined in accordance with guidance 
issued by the Department to have a legitimate interest.
    (b) The primary grounds on which the Department will consider 
reversing a finding of loss of nationality and vacating a Certificate of 
Loss of Nationality are:
    (1) The law under which the finding of loss was made has been held 
unconstitutional; or
    (2) A major change in the interpretation of the law of expatriation 
is made as a result of a U.S. Supreme Court decision; or
    (3) A major change in the interpretation of the law of expatriation 
is made by the Department, or is made by a court or another agency and 
adopted by the Department; and/or
    (4) The person presents substantial new evidence, not previously 
considered, of involuntariness or absence of intent at the time of the 
expatriating act.
    (c) When the Department reverses a finding of loss of nationality, 
the person concerned shall be considered not to have lost U.S. 
nationality as of the time the expatriating act was committed, and the 
Certificate of Loss of Nationality shall be vacated.
    (d) Requesting the Department to reverse a finding of loss of 
nationality and vacate a Certificate of Loss of Nationality is not a 
prescribed ``procedure for administrative appeal'' for purposes of Sec. 
358 of the Immigration and Nationality Act (8 U.S.C. 1501). The 
Department's decision in response to such a request is not a prescribed 
``procedure for administrative appeal'' for purposes of Sec. 358 of the 
Immigration and Nationality Act (8 U.S.C. 1501). The issuance of a 
Certificate of Loss of Nationality by the Department is a ``final 
administrative determination'' and ``final administrative denial'' for 
purposes of Sec. Sec. 358 and 360 of the Immigration and Nationality 
Act (8 U.S.C. 1501 and 1503), respectively.

[73 FR 41258, July 18, 2008]



PART 51_PASSPORTS--Table of Contents




Sec.
51.1 Definitions.

                            Subpart A_General

51.2 Passport issued to nationals only.
51.3 Types of passports.
51.4 Validity of passports.
51.5 Adjudication and issuance of passports.
51.6 Verification of passports and release of information from passport 
          records.
51.7 Passport property of the U.S. Government.
51.8 Submission of currently valid passport.
51.9 Amendment of passports.
51.10 Replacement passports.

                          Subpart B_Application

51.20 General.
51.21 Execution of passport application.
51.22 Passport agents and passport acceptance agents.
51.23 Identity of applicant.
51.24 Affidavit of identifying witness.
51.25 Name of applicant to be used in passport.
51.26 Photographs.
51.27 Incompetents.
51.28 Minors.

          Subpart C_Evidence of U.S. Citizenship or Nationality

51.40 Burden of proof.
51.41 Documentary evidence.
51.42 Persons born in the United States applying for a passport for the 
          first time.
51.43 Persons born outside the United States applying for a passport for 
          the first time.
51.44 Proof of resumption or retention of U.S. citizenship.
51.45 Department discretion to require evidence of U.S. citizenship or 
          non-citizen nationality.
51.46 Return or retention of evidence of U.S. citizenship or non-citizen 
          nationality.

                             Subpart D_Fees

51.50 Form of payment.
51.51 Passport fees.
51.52 Exemption from payment of passport fees.
51.53 Refunds.
51.54 Replacement passports without payment of applicable fees.
51.55 Execution fee not refundable.
51.56 Expedited passport processing.

       Subpart E_Denial, Revocation, and Restriction of Passports

51.60 Denial and restriction of passports.
51.61 Denial of passports to certain convicted drug traffickers.
51.62 Revocation or limitation of passports.
51.63 Passports invalid for travel into or through restricted areas; 
          prohibition on passports valid only for travel to Israel.

[[Page 233]]

51.64 Special validation of passports for travel to restricted areas.
51.65 Notification of denial or revocation of passport.
51.66 Surrender of passport.

   Subpart F_Procedures for Review of Certain Denials and Revocations

51.70 Request for hearing to review certain denials and revocations.
51.71 The hearing.
51.72 Transcript and record of the hearing.
51.73 Privacy of hearing.
51.74 Final decision.

    Authority: 8 U.S.C. 1504; 18 U.S.C. 1621; 22 U.S.C. 211a, 212, 213, 
213n (Pub. L. 106-113 Div. B, Sec. 1000(a)(7) [Div. A, Title II, Sec. 
236], 113 Stat. 1536, 1501A-430); 214, 214a, 217a, 218, 2651a, 
2671(d)(3), 2705, 2714, 2721, & 3926; 26 U.S.C. 6039E; 31 U.S.C. 9701; 
42 U.S.C. 652(k) [Div. B, Title V of Pub. L. 103-317, 108 Stat. 1760]; 
E.O. 11295, Aug. 6, 1966, FR 10603, 3 CFR, 1966-1970 Comp., p. 570; Sec. 
1 of Pub. L. 109-210, 120 Stat. 319; Sec. 2 of Pub. L. 109-167, 119 
Stat. 3578; Sec. 5 of Pub. L. 109-472, 120 Stat. 3554; Pub. L. 108-447, 
Div. B, Title IV, Dec. 8, 2004, 118 Stat. 2809; Pub. L. 108-458, 118 
Stat. 3638, 3823 (Dec. 17, 2004).

    Source: 72 FR 64931, Nov. 19, 2007, unless otherwise noted.



Sec. 51.1  Definitions.

    The following definitions are applicable to this part:
    (a) Department means the United States Department of State.
    (b) Electronic passport means a passport containing an 
electronically readable device, an electronic chip encoded with the 
bearer's personal information printed on the data page, a digitized 
version of the bearer's photograph, a unique chip number, and a digital 
signature to protect the integrity of the stored information.
    (c) Minor means an unmarried, unemancipated person under 18 years of 
age.
    (d) Passport means a travel document regardless of format issued 
under the authority of the Secretary of State attesting to the identity 
and nationality of the bearer.
    (e) Passport acceptance agent means a U.S. national designated by 
the Department to accept passport applications and to administer oaths 
and affirmations in connection with such applications.
    (f) Passport agent means a U.S. citizen employee of the Department 
of State, including consular officers, diplomatic officers and consular 
agents abroad, and such U.S. citizen Department of State employees or 
contractors as the Assistant Secretary for Consular Affairs may 
designate for the purpose of administering oaths and affirmations for 
passport applications.
    (g) Passport application means the application form for a United 
States passport, as prescribed by the Department pursuant to 22 U.S.C. 
213 and all documents, photographs, and statements submitted with the 
form or thereafter in support of the application.
    (h) Passport authorizing officer means a U.S. citizen employee who 
is authorized by the Department to approve the issuance of passports.
    (i) Secretary means the Secretary of State.
    (j) United States when used in a geographical sense means the 
continental United States, Alaska, Hawaii, Puerto Rico, Guam, the Virgin 
Islands of the United States, and all other United States territories 
and possessions.
    (k) U.S. citizen means a person who acquired U.S. citizenship at 
birth or upon naturalization as provided by law and who has not 
subsequently lost such citizenship.
    (l) U.S. national means a U.S. citizen or a U.S. non-citizen 
national.
    (m) U.S. non-citizen national means a person on whom U.S. 
nationality, but not U.S. citizenship, has been conferred at birth under 
8 U.S.C. 1408, or under other law or treaty, and who has not 
subsequently lost such non-citizen nationality.

[72 FR 64931, Nov. 19, 2007; 73 FR 5435, Jan. 30, 2008]



                            Subpart A_General



Sec. 51.2  Passport issued to nationals only.

    (a) A passport may be issued only to a U.S. national.
    (b) Unless authorized by the Department, no person may bear more 
than one valid passport of the same type.



Sec. 51.3  Types of passports.

    (a) Regular passport. A regular passport is issued to a national of 
the United States.

[[Page 234]]

    (b) Official passport. An official passport is issued to an official 
or employee of the U.S. Government traveling abroad to carry out 
official duties. When authorized by the Department, spouses and family 
members of such persons may be issued official passports. When 
authorized by the Department, an official passport may be issued to a 
U.S. government contractor traveling abroad to carry out official duties 
on behalf of the U.S. government.
    (c) Diplomatic passport. A diplomatic passport is issued to a 
Foreign Service officer or to a person having diplomatic status or 
comparable status because he or she is traveling abroad to carry out 
diplomatic duties on behalf of the U.S. Government. When authorized by 
the Department, spouses and family members of such persons may be issued 
diplomatic passports. When authorized by the Department, a diplomatic 
passport may be issued to a U.S. Government contractor if the contractor 
meets the eligibility requirements for a diplomatic passport and the 
diplomatic passport is necessary to complete his or her mission.
    (d) Passport card. A passport card is issued to a national of the 
United States on the same basis as a regular passport. It is valid only 
for departure from and entry to the United States through land and sea 
ports of entry between the United States and Mexico, Canada, the 
Caribbean and Bermuda. It is not a globally interoperable international 
travel document.

[72 FR 64931, Nov. 19, 2007, as amended at 72 FR 74173, Dec. 31, 2007]



Sec. 51.4  Validity of passports.

    (a) Signature of bearer. A passport book is valid only when signed 
by the bearer in the space designated for signature, or, if the bearer 
is unable to sign, signed by a person with legal authority to sign on 
his or her behalf. A passport card is valid without the signature of the 
bearer.
    (b) Period of validity of a regular passport and a passport card. 
(1) A regular passport or passport card issued to an applicant 16 years 
of age or older is valid for ten years from date of issue unless the 
Department limits the validity period to a shorter period.
    (2) A regular passport or passport card issued to an applicant under 
16 years of age is valid for five years from date of issue unless the 
Department limits the validity period to a shorter period.
    (3) A regular passport for which payment of the fee has been excused 
is valid for a period of five years from the date issued unless limited 
by the Department to a shorter period.
    (c) Period of validity of an official passport. The period of 
validity of an official passport, unless limited by the Department to a 
shorter period, is five years from the date of issue, or so long as the 
bearer maintains his or her official status, whichever is shorter. An 
official passport which has not expired must be returned to the 
Department upon the termination of the bearer's official status or at 
such other time as the Department may determine.
    (d) Period of validity of a diplomatic passport. The period of 
validity of a diplomatic passport, unless limited by the Department to a 
shorter period, is five years from the date of issue, or so long as the 
bearer maintains his or her diplomatic status, whichever is shorter. A 
diplomatic passport which has not expired must be returned to the 
Department upon the termination of the bearer's diplomatic status or at 
such other time as the Department may determine.
    (e) Limitation of validity. The validity period of any passport may 
be limited by the Department to less than the normal validity period. 
The bearer of a limited passport may apply for a new passport, using the 
proper application and submitting the limited passport, applicable fees, 
photographs, and additional documentation, if required, to support the 
issuance of a new passport.
    (f) Invalidity. A United States passport is invalid as soon as:
    (1) The Department has sent or personally delivered a written notice 
to the bearer stating that the passport has been revoked; or
    (2) The passport has been reported as lost or stolen to the 
Department, a U.S. passport agency or a diplomatic or consular post 
abroad and the Department has recorded the reported loss or theft; or

[[Page 235]]

    (3) The passport is cancelled by the Department (physically, 
electronically, or otherwise) upon issuance of a new passport of the 
same type to the bearer; or
    (4) The Department has sent a written notice to the bearer that the 
passport has been invalidated because the Department has not received 
the applicable fees; or
    (5) The passport has been materially changed in physical appearance 
or composition, or contains a damaged, defective or otherwise 
nonfunctioning chip, or includes unauthorized changes, obliterations, 
entries or photographs, or has observable wear or tear that renders it 
unfit for use as a travel document, and the Department either takes 
possession of the passport or sends a written notice to the bearer.

[72 FR 64931, Nov. 19, 2007, as amended at 72 FR 74173, Dec. 31, 2007]



Sec. 51.5  Adjudication and issuance of passports.

    (a) A passport authorizing officer may adjudicate applications and 
authorize the issuance of passports.
    (b) A passport authorizing officer will examine the passport 
application and all documents, photographs and statements submitted in 
support of the application in accordance with guidance issued by the 
Department.



Sec. 51.6  Verification of passports and release of information from passport 

records.

    (a) Verification. When required by a foreign government, a consular 
officer abroad may verify a U.S. passport.
    (b) Release of information. Information in passport records is 
subject to the provisions of the Freedom of Information Act (FOIA) and 
the Privacy Act. Release of this information may be requested in 
accordance with Part 171 or Part 172 of this title.



Sec. 51.7  Passport property of the U.S. Government.

    (a) A passport at all times remains the property of the United 
States and must be returned to the U.S. Government upon demand.
    (b) Law enforcement authorities who take possession of a passport 
for use in an investigation or prosecution must return the passport to 
the Department on completion of the investigation and/or prosecution.



Sec. 51.8  Submission of currently valid passport.

    (a) When applying for a new passport, an applicant must submit for 
cancellation any currently valid passport of the same type.
    (b) If an applicant is unable to produce a passport under paragraph 
(a) of this section, he or she must submit a signed statement in the 
form prescribed by the Department setting forth the circumstances 
regarding the disposition of the passport.
    (c) The Department may deny or limit a passport if the applicant has 
failed to provide a sufficient and credible explanation for lost, 
stolen, altered or mutilated passport(s) previously issued to the 
applicant, after being given a reasonable opportunity to do so.



Sec. 51.9  Amendment of passports.

    Except for the convenience of the U.S. Government, no passport may 
be amended.



Sec. 51.10  Replacement passports.

    A passport issuing office may issue a replacement passport without 
payment of applicable fees for the reasons specified in Sec. 51.54.



                          Subpart B_Application



Sec. 51.20  General.

    (a) An application for a passport, a replacement passport, extra 
visa pages, or other passport related service must be completed using 
the forms the Department prescribes.
    (b) The passport applicant must truthfully answer all questions and 
must state every material matter of fact pertaining to his or her 
eligibility for a passport. All information and evidence submitted in 
connection with an application is considered part of the application. A 
person providing false information as part of a passport application, 
whether contemporaneously with the form or at any other time, is subject 
to prosecution under applicable Federal criminal statutes.

[[Page 236]]



Sec. 51.21  Execution of passport application.

    (a) Application by personal appearance. Except as provided in Sec. 
51.28, to assist in establishing identity, a minor, a person who has 
never been issued a passport in his or her own name, a person who has 
not been issued a passport for the full validity period of 10 years in 
his or her own name within 15 years of the date of a new application, or 
a person who is otherwise not eligible to apply for a passport by mail 
under paragraphs (b) and (c) of this section, must apply for a passport 
by appearing in person before a passport agent or passport acceptance 
agent (see Sec. 51.22). The applicant must verify the application by 
oath or affirmation before the passport agent or passport acceptance 
agent, sign the completed application, provide photographs as prescribed 
by the Department, provide any other information or documents requested 
and pay the applicable fees prescribed in the Schedule of Fees for 
Consular Services (see 22 CFR 22.1).
    (b) Application by mail--persons in the United States. (1) A person 
in the United States who previously has been issued a passport valid for 
10 years in his or her own name may apply for a new passport by filling 
out, signing and mailing an application on the form prescribed by the 
Department if:
    (i) The most recently issued previous passport was issued when the 
applicant was 16 years of age or older;
    (ii) The application is made not more than 15 years following the 
issue date of the previous passport, except as provided in paragraph (e) 
of this section; and
    (iii) The most recently issued previous passport of the same type is 
submitted with the new application.
    (2) The applicant must also provide photographs as prescribed by the 
Department and pay the applicable fees prescribed in the Schedule of 
Fees for Consular Services (22 CFR 22.1).
    (c) Application by mail--persons abroad. (1) A person in a foreign 
country where the Department has authorized a post to receive passport 
applications by mail who previously has been issued a passport valid for 
10 years in his or her own name may apply for a new passport in that 
country by filling out, signing and mailing an application on the form 
prescribed by the Department if:
    (i) The most recently issued previous passport was issued when the 
applicant was 16 years of age or older;
    (ii) The application is made not more than 15 years following the 
issue date of the previous passport, except as provided in paragraph (e) 
of this section; and
    (iii) The most recently issued previous passport of the same type is 
submitted with the new application.
    (2) The applicant must also provide photographs as prescribed by the 
Department and pay the applicable fees prescribed in the Schedule of 
Fees for Consular Services (22 CFR 22.1).
    (d) Nothing in this Part shall prohibit or limit the Department from 
authorizing an overseas post to accept a passport application or 
applications from persons outside the country or outside the person's 
country of residence in circumstances which prevent provision of these 
services to the person where they are located or in other unusual 
circumstances as determined by the Department.
    (e) A senior passport authorizing officer may authorize acceptance 
of an application by mail where the application is made more than 15 
years following the issue date of the previous passport as appropriate 
and in accordance with guidance issued by the Department.

[72 FR 64931, Nov. 19, 2007; 73 FR 4078, Jan. 24, 2008]



Sec. 51.22  Passport agents and passport acceptance agents.

    (a) U.S. citizen employees of the Department authorized to serve as 
passport agents. The following employees of the Department are 
authorized by virtue of their positions to serve as passport agents 
unless the Department in an individual case withdraws authorization:
    (1) A passport authorizing officer;
    (2) A consular officer, or a U.S. citizen consular agent abroad;
    (3) A diplomatic officer specifically authorized by the Department 
to accept passport applications; and
    (4) Such U.S. citizen Department of State employees and contractors 
as the Assistant Secretary for Consular Affairs may designate for the 
purpose of

[[Page 237]]

administering oaths and affirmations for passport applications.
    (b) Persons designated by the Department to serve as passport 
acceptance agents. When designated by the Department, the following 
persons are authorized to serve as passport acceptance agents unless the 
Department in an individual case withdraws authorization.
    (1) An employee of the clerk of any Federal court;
    (2) An employee of the clerk of any state court of record;
    (3) A postal employee at a United States post office that has been 
selected to accept passport applications;
    (4) An employee of the Department of Defense at a military 
installation that has been authorized to accept passport applications;
    (5) An employee of a federal agency that has been selected to accept 
passport applications; and
    (6) Any other person specifically designated by the Department.
    (c) Qualifications of persons designated by the Department to serve 
as passport acceptance agents. Before the Department will designate a 
person described in Sec. 51.22(b) as a passport acceptance agent, his 
or her employer must certify that the person:
    (1) Is a U.S. citizen or a U.S. non-citizen national;
    (2) Is 18 years of age or older;
    (3) Is a permanent employee, excluding ad hoc, contractual, and 
volunteer employees; and
    (4) Does not have a record of either:
    (i) A Federal or State felony conviction; or
    (ii) A misdemeanor conviction for crimes involving moral turpitude 
or breach of trust, including but not limited to embezzlement, identity 
theft, misappropriation, document fraud, drug offenses, or dishonesty in 
carrying out a responsibility involving public trust.
    (d) Training. A passport acceptance agent described in Sec. 
51.22(b) must be trained to apply procedures and practices as detailed 
in guidance provided by the Department. Training must be successfully 
completed before accepting passport applications.
    (e) Responsibilities. The responsibilities of a passport acceptance 
agent described in Sec. 51.22(b) include but are not limited to the 
following:
    (1) Certifying the identity of each applicant. Passport acceptance 
agents must certify that they have personally witnessed the applicant 
signing his or her application, and that the applicant has:
    (i) Personally appeared;
    (ii) Presented proper identification, as documented on the 
application;
    (iii) Submitted photographs that are a true likeness; and
    (iv) Taken the oath administered by the acceptance agent.
    (2) Safeguarding passport application information under the Privacy
    Act of 1974. Passport acceptance agents described in Sec. 51.22(b) 
must not retain copies of executed applications, nor release passport 
application information to anyone other than the applicant and the 
Department.
    (3) Avoiding conflict of interest. Passport acceptance agents 
described in Sec. 51.22(b) must not participate in any relationship 
that could be perceived as a conflict of interest, including but not 
limited to providing commercial services related to the passport 
process.
    (f) Documentation. Passport acceptance facilities within the United
    States must maintain a current listing of all passport acceptance 
agents designated under Sec. 51.22(b) working at its facility. This 
list must be updated at least annually and a copy provided to the 
officer specified by the Department at the appropriate passport issuing 
office.
    (1) The current listing of all designated passport acceptance agents 
must include the passport acceptance agents':
    (i) Names; and
    (ii) Signatures.
    (2) Any addition to or deletion from the current listing of 
designated passport acceptance agents is subject to prior approval by 
the Department.



Sec. 51.23  Identity of applicant.

    (a) The applicant has the burden of establishing his or her 
identity.
    (b) The applicant must establish his or her identity by the 
submission of a previous passport, other state, local, or federal 
government officially issued identification with photograph, or

[[Page 238]]

other identifying evidence which may include an affidavit of an 
identifying witness.
    (c) The Department may require such additional evidence of identity 
as it deems necessary.



Sec. 51.24  Affidavit of identifying witness.

    (a) An identifying witness must execute an affidavit in the form 
prescribed by the Department before the person who accepts the passport 
application.
    (b) A person who has received or expects to receive a fee for his or 
her services in connection with executing the application or obtaining 
the passport may not serve as an identifying witness.



Sec. 51.25  Name of applicant to be used in passport.

    (a) The passport shall be issued in the full name of the applicant, 
generally the name recorded in the evidence of nationality and identity.
    (b) The applicant must explain any material discrepancies between 
the name on the application and the name recorded in the evidence of 
nationality and identity. The name provided by the applicant on the 
application may be used if the applicant submits the documentary 
evidence prescribed by the Department.
    (c) A name change will be recognized for purposes of issuing a 
passport if the name change occurs in one of the following ways.
    (1) Court order or decree. An applicant whose name has been changed 
by court order or decree must submit with his or her application a copy 
of the order or decree.
    Acceptable types of court orders and decrees include but are not 
limited to:
    (i) A name change order;
    (ii) A divorce decree specifically declaring the return to a former 
name;
    (2) Certificate of naturalization issued in a new name.
    (3) Marriage. An applicant who has adopted a new name following 
marriage must present a copy of the marriage certificate.
    (4) Operation of state law. An applicant must present operative 
government-issued legal documentation declaring the name change or 
issued in the new name.
    (5) Customary usage. An applicant who has adopted a new name other 
than as prescribed in paragraphs (c)(1) through (4) of this section must 
submit evidence of public and exclusive use of the adopted name for a 
long period of time, in general five years, as prescribed in guidance 
issued by the Department. The evidence must include three or more public 
documents, including one government-issued identification with 
photograph and other acceptable public documents prescribed by the 
Department.



Sec. 51.26  Photographs.

    The applicant must submit with his or her application photographs as 
prescribed by the Department that are a good likeness of and 
satisfactorily identify the applicant.



Sec. 51.27  Incompetents.

    A legal guardian or other person with the legal capacity to act on 
behalf of a person declared incompetent may execute a passport 
application on the incompetent person's behalf.



Sec. 51.28  Minors.

    (a) Minors under age 16--(1) Personal appearance. Minors under 16 
years of age applying for a passport must appear in person, unless the 
personal appearance of the minor is specifically excused by a senior 
passport authorizing officer, pursuant to guidance issued by the 
Department. In cases where personal appearance is excused, the person(s) 
executing the passport application on behalf of the minor shall appear 
in person and verify the application by oath or affirmation before a 
person authorized by the Secretary to administer oaths or affirmations, 
unless these requirements are also excused by a senior passport 
authorizing officer pursuant to guidance issued by the Department.
    (2) Execution of passport application by both parents or by each 
legal guardian. Except as specifically provided in this section, both 
parents or each of the minor's legal guardians, if any, whether applying 
for a passport for the first time or for a renewal, must execute the 
application on behalf of a minor under

[[Page 239]]

age 16 and provide documentary evidence of parentage or legal 
guardianship showing the minor's name, date and place of birth, and the 
names of the parent or parents or legal guardian.
    (3) Execution of passport application by one parent or legal 
guardian. A passport application may be executed on behalf of a minor 
under age 16 by only one parent or legal guardian if such person 
provides:
    (i) A notarized written statement or affidavit from the non-applying 
parent or legal guardian, if applicable, consenting to the issuance of 
the passport, or
    (ii) Documentary evidence that such person is the sole parent or has 
sole custody of the minor. Such evidence includes, but is not limited 
to, the following:
    (A) A birth certificate providing the minor's name, date and place 
of birth and the name of only the applying parent;
    (B) A Consular Report of Birth Abroad of a Citizen of the United 
States of America or a Certification of Report of Birth of a United 
States Citizen providing the minor's name, date and place of birth and 
the name of only the applying parent;
    (C) A copy of the death certificate for the non-applying parent or 
legal guardian;
    (D) An adoption decree showing the name of only the applying parent;
    (E) An order of a court of competent jurisdiction granting sole 
legal custody to the applying parent or legal guardian containing no 
travel restrictions inconsistent with issuance of the passport; or, 
specifically authorizing the applying parent or legal guardian to obtain 
a passport for the minor, regardless of custodial arrangements; or 
specifically authorizing the travel of the minor with the applying 
parent or legal guardian;
    (F) An order of a court of competent jurisdiction terminating the 
parental rights of the non-applying parent or declaring the non-applying 
parent or legal guardian to be incompetent.
    (G) An order of a court of competent jurisdiction providing for 
joint legal custody or requiring the permission of both parents or the 
court for important decisions will be interpreted as requiring the 
permission of both parents or the court, as appropriate. Notwithstanding 
the existence of any such court order, a passport may be issued when 
compelling humanitarian or emergency reasons relating to the welfare of 
the minor exist.
    (4) Execution of passport application by a person acting in loco 
parentis. (i) A person may apply in loco parentis on behalf of a minor 
under age 16 by submitting a notarized written statement or a notarized 
affidavit from both parents or each legal guardian, if any, specifically 
authorizing the application.
    (ii) If only one parent or legal guardian provides the notarized 
written statement or notarized affidavit, the applicant must provide 
documentary evidence that an application may be made by one parent or 
legal guardian, consistent with Sec. 51.28(a)(3)
    (5) Exigent or special family circumstances. A passport may be 
issued when only one parent, legal guardian or person acting in loco 
parentis executes the application, in cases of exigent or special family 
circumstances.
    (i) ``Exigent circumstances'' are defined as time-sensitive 
circumstances in which the inability of the minor to obtain a passport 
would jeopardize the health and safety or welfare of the minor or would 
result in the minor being separated from the rest of his or her 
traveling party. ``Time sensitive'' generally means that there is not 
enough time before the minor's emergency travel to obtain either the 
required consent of both parents/legal guardians or documentation 
reflecting a sole parent's/legal guardian's custody rights.
    (ii) ``Special family circumstances'' are defined as circumstances 
in which the minor's family situation makes it exceptionally difficult 
for one or both of the parents to execute the passport application; and/
or compelling humanitarian circumstances where the minor's lack of a 
passport would jeopardize the health, safety, or welfare of the minor; 
or, pursuant to guidance issued by the Department, circumstances in 
which return of a minor to the jurisdiction of his or her home state or 
habitual residence is necessary

[[Page 240]]

to permit a court of competent jurisdiction to adjudicate or enforce a 
custody determination. A passport issued due to such special family 
circumstances may be limited for direct return to the United States in 
accordance with Sec. 51.60(e).
    (iii) A parent, legal guardian, or person acting in loco parentis 
who is applying for a passport for a minor under age 16 under this 
paragraph must submit a written statement with the application 
describing the exigent or special family circumstances he or she 
believes should be taken into consideration in applying an exception.
    (iv) Determinations under Sec. 51.28(a)(5) must be made by a senior 
passport authorizing officer pursuant to guidance issued by the 
Department.
    (6) Nothing contained in this section shall prohibit any Department 
official adjudicating a passport application filed on behalf of a minor 
from requiring an applicant to submit other documentary evidence deemed 
necessary to establish the applying adult's entitlement to obtain a 
passport on behalf of a minor under the age of 16 in accordance with the 
provisions of this regulation.
    (b) Minors 16 years of age and above. (1) A minor 16 years of age 
and above applying for a passport must appear in person and may execute 
the application for a passport on his or her own behalf unless the 
personal appearance of the minor is specifically excused by a senior 
passport authorizing officer pursuant to guidance issued by the 
Department, or unless, in the judgment of the person before whom the 
application is executed, it is not advisable for the minor to execute 
his or her own application. In such case, it must be executed by a 
parent or legal guardian of the minor, or by a person in loco parentis, 
unless the personal appearance of the parent, legal guardian or person 
in loco parentis is excused by the senior passport authorizing officer 
pursuant to guidance issued by the Department.
    (2) The passport authorizing officer may at any time require a minor 
16 years of age and above to submit the notarized consent of a parent, a 
legal guardian, or a person in loco parentis to the issuance of the 
passport.
    (c) Rules applicable to all minors--(1) Objections. At any time 
prior to the issuance of a passport to a minor, the application may be 
disapproved and a passport may be denied upon receipt of a written 
objection from a parent or legal guardian of the minor, or from another 
party claiming authority to object, so long as the objecting party 
provides sufficient documentation of his or her custodial rights or 
other authority to object.
    (2) An order from a court of competent jurisdiction providing for 
joint legal custody or requiring the permission of both parents or the 
court for important decisions will be interpreted as requiring the 
permission of both parents or the court as appropriate.
    (3) The Department will consider a court of competent jurisdiction 
to be a U.S. state or federal court or a foreign court located in the 
minor's home state or place of habitual residence.
    (4) The Department may require that conflicts regarding custody 
orders, whether domestic or foreign, be settled by the appropriate court 
before a passport may be issued.
    (5) Access by parents and legal guardians to passport records for 
minors. Either parent or any legal guardian of a minor may upon written 
request obtain information regarding the application for and issuance of 
a passport to a minor, unless the requesting parent's parental rights 
have been terminated by an order of a court of competent jurisdiction, a 
copy of which has been provided to the Department. The Department may 
deny such information to a parent or legal guardian if it determines 
that the minor objects to disclosure and the minor is 16 years of age or 
older or if the Department determines that the minor is of sufficient 
age and maturity to invoke his or her own privacy rights.



          Subpart C_Evidence of U.S. Citizenship or Nationality



Sec. 51.40  Burden of proof.

    The applicant has the burden of proving that he or she is a U.S. 
citizen or non-citizen national.

[[Page 241]]



Sec. 51.41  Documentary evidence.

    The applicant must provide documentary evidence that he or she is a 
U.S. citizen or non-citizen national.



Sec. 51.42  Persons born in the United States applying for a passport for the 

first time.

    (a) Primary evidence of birth in the United States. A person born in 
the United States generally must submit a birth certificate. The birth 
certificate must show the full name of the applicant, the applicant's 
place and date of birth, the full name of the parent(s), and must be 
signed by the official custodian of birth records, bear the seal of the 
issuing office, and show a filing date within one year of the date of 
birth.
    (b) Secondary evidence of birth in the United States. If the 
applicant cannot submit a birth certificate that meets the requirement 
of paragraph (a) of this section, he or she must submit secondary 
evidence sufficient to establish to the satisfaction of the Department 
that he or she was born in the United States. Secondary evidence 
includes but is not limited to hospital birth certificates, baptismal 
certificates, medical and school records, certificates of circumcision, 
other documentary evidence created shortly after birth but generally not 
more than 5 years after birth, and/or affidavits of persons having 
personal knowledge of the facts of the birth.



Sec. 51.43  Persons born outside the United States applying for a passport for 

the first time.

    (a) General. A person born outside the United States must submit 
documentary evidence that he or she meets all the statutory requirements 
for acquisition of U.S. citizenship or non-citizen nationality under the 
provision of law or treaty under which the person is claiming U.S. 
citizenship or non-citizen nationality.
    (b) Documentary evidence. (1) Types of documentary evidence of 
citizenship for a person born outside the United States include:
    (i) A certificate of naturalization.
    (ii) A certificate of citizenship.
    (iii) A Consular Report of Birth Abroad.
    (2) An applicant without one of these documents must produce 
supporting documents as required by the Department, showing acquisition 
of U.S. citizenship under the relevant provisions of law.



Sec. 51.44  Proof of resumption or retention of U.S. citizenship.

    An applicant who claims to have resumed or retained U.S. citizenship 
must submit with the application a certificate of naturalization or 
evidence that he or she took the steps necessary to resume or retain 
U.S. citizenship in accordance with the applicable provision of law.



Sec. 51.45  Department discretion to require evidence of U.S. citizenship or 

non-citizen nationality.

    The Department may require an applicant to provide any evidence that 
it deems necessary to establish that he or she is a U.S. citizen or non-
citizen national, including evidence in addition to the evidence 
specified in 22 CFR 51.42 through 51.44.



Sec. 51.46  Return or retention of evidence of U.S. citizenship or non-citizen 

nationality.

    The Department will generally return to the applicant evidence 
submitted in connection with an application for a passport. The 
Department may, however, retain evidence when it deems it necessary for 
anti-fraud or law enforcement or other similar purposes.



                             Subpart D_Fees



Sec. 51.50  Form of payment.

    Passport fees must be paid in U.S. currency or in other forms of 
payments permitted by the Department.



Sec. 51.51  Passport fees.

    The Department collects the following passport fees in the amounts 
prescribed in the Schedule of Fees for Consular Services (22 CFR 22.1):
    (a) An application fee, which must be paid at the time of 
application, except as provided in Sec. 51.52, and is not refundable, 
except as provided in Sec. 51.53.
    (b) An execution fee, except as provided in Sec. 51.52, when the 
applicant is

[[Page 242]]

required to execute the application in person before a person authorized 
to administer oaths for passport purposes. The execution fee is 
collected at the time of application and is not refundable (see Sec. 
51.55). When execution services are provided by an official of a State 
or local government or of the United States Postal Service (USPS), the 
State or local government or USPS may retain the fee if authorized to do 
so by the Department.
    (c) A fee for expedited passport processing, if applicable (see 
Sec. 51.56).
    (d) A surcharge in the amount of twenty dollars ($20) on the filing 
of each application for a passport in order to cover the costs of 
meeting the increased demand for passports as a result of actions taken 
to comply with section 7209(b) of the Intelligence Reform and Terrorism 
Prevention Act of 2004 (8 U.S.C. 1165 note). The surcharge will be 
recovered by the Department of State from within the passport fee 
reflected in the Schedule of Fees for Consular Services.
    (e) An ``enhanced border security'' surcharge on the filing of each 
application for a regular passport in an amount set administratively by 
the Department and published in the Schedule of Fees for Consular 
Services.
    (f) Any other fee that the Department is authorized or required by 
law to charge for passport services.
    (g) The foregoing fees are applicable regardless of the validity 
period of the passport.

[72 FR 64931, Nov. 19, 2007; 73 FR 5435, Jan. 30, 2008]



Sec. 51.52  Exemption from payment of passport fees.

    (a) A person who is exempt from the payment of passport fees under 
this section may obtain a passport book only for no charge. A passport 
card will not be issued for no charge to the individuals exempt from the 
payment of passport fees under this section.
    (b) The following persons are exempt from payment of passport fees 
except for the passport execution fee, unless their applications are 
executed before a federal official, in which case they are also exempt 
from payment of the passport execution fee:
    (1) An officer or employee of the United States traveling on 
official business and the members of his or her immediate family. The 
applicant must submit evidence of the official purpose of the travel 
and, if applicable, authorization for the members of his or her 
immediate family to accompany or reside with him or her abroad.
    (2) An American seaman who requires a passport in connection with 
his or her duties aboard a United States flag vessel.
    (3) A widow, widower, child, parent, brother or sister of a deceased 
member of the United States Armed Forces proceeding abroad to visit the 
grave of such service member or to attend a funeral or memorial service 
for such member.
    (4) Other persons whom the Department determines should be exempt 
from payment of passport fees for compelling circumstances, pursuant to 
guidance issued by the Department; or
    (5) Other categories of persons exempted by law.

[72 FR 74173, Dec. 31, 2007]



Sec. 51.53  Refunds.

    (a) The Department will refund the passport application fee and the 
security surcharge to any person exempt from payment of passport fees 
under 22 CFR 51.52 from whom the fee was erroneously collected.
    (b) The Department will refund an expedited passport processing fee 
if the Department fails to provide expedited passport processing as 
provided in 22 CFR 51.56.
    (c) For procedures on refunds of $5.00 or less, see 22 CFR 22.6(b).



Sec. 51.54  Replacement passports without payment of applicable fees.

    A passport issuing office may issue a replacement passport for the 
following reasons without payment of applicable fees:
    (a) To correct an error or rectify a mistake of the Department;
    (b) When the bearer has changed his or her name or other personal 
identifier listed on the data page of the passport, and applies for a 
replacement passport within one year of the date of the passport's 
original issuance.

[[Page 243]]

    (c) When the bearer of an emergency full fee passport issued for a 
limited validity period applies for a full validity passport within one 
year of the date of the passport's original issuance.
    (d) When a passport is retained by U.S. law enforcement or judiciary 
for evidentiary purposes and the bearer is still eligible to have a 
passport.
    (e) When a passport is issued to replace a passport with a failed 
electronic chip for the balance of the original validity period.



Sec. 51.55  Execution fee not refundable.

    The fee for the execution of a passport application is not 
refundable.



Sec. 51.56  Expedited passport processing.

    (a) Within the United States, an applicant for passport service 
(including issuance, replacement or the addition of visa pages) may 
request expedited processing. The Department may decline to accept the 
request.
    (b) Expedited passport processing shall mean completing processing 
within the number of business days published on the Department's Web 
site, http://www.travel.state.gov, commencing when the application 
reaches a Passport Agency or, if the application is already with a 
Passport Agency, commencing when the request for expedited processing is 
approved. The processing will be considered completed when the passport 
is ready to be picked up by the applicant or is mailed to the applicant, 
or a letter of passport denial is transmitted to the applicant.
    (c) A fee is charged for expedited passport processing (see 22 CFR 
51.51(c)). The fee does not cover any costs of mailing above the normal 
level of service regularly provided by the Department. The cost of 
expedited mailing must be paid by the applicant.
    (d) The Department will not charge the fee for expedited passport 
processing if the Department's error, mistake or delay caused the need 
for expedited processing.

[72 FR 64931, Nov. 19, 2007, as amended at 74 FR 47727, Sept. 17, 2009]



       Subpart E_Denial, Revocation, and Restriction of Passports



Sec. 51.60  Denial and restriction of passports.

    (a) The Department may not issue a passport, except a passport for 
direct return to the United States, in any case in which the Department 
determines or is informed by competent authority that:
    (1) The applicant is in default on a loan received from the United 
States under 22 U.S.C. 2671(b)(2)(B) for the repatriation of the 
applicant and, where applicable, the applicant's spouse, minor 
child(ren), and/or other immediate family members, from a foreign 
country (see 22 U.S.C. 2671(d)); or
    (2) The applicant has been certified by the Secretary of Health and 
Human Services as notified by a state agency under 42 U.S.C. 652(k) to 
be in arrears of child support in an amount determined by statute.
    (b) The Department may refuse to issue a passport in any case in 
which the Department determines or is informed by competent authority 
that:
    (1) The applicant is the subject of an outstanding Federal warrant 
of arrest for a felony, including a warrant issued under the Federal 
Fugitive Felon Act (18 U.S.C. 1073); or
    (2) The applicant is subject to a criminal court order, condition of 
probation, or condition of parole, any of which forbids departure from 
the United States and the violation of which could result in the 
issuance of a Federal warrant of arrest, including a warrant issued 
under the Federal Fugitive Felon Act; or
    (3) The applicant is subject to a U.S. court order committing him or 
her to a mental institution; or
    (4) The applicant has been legally declared incompetent by a court 
of competent jurisdiction in the United States; or
    (5) The applicant is the subject of a request for extradition or 
provisional request for extradition which has been presented to the 
government of a foreign country; or
    (6) The applicant is the subject of a subpoena received from the 
United States pursuant to 28 U.S.C. 1783, in a matter involving Federal 
prosecution

[[Page 244]]

for, or grand jury investigation of, a felony; or
    (7) The applicant is a minor and the passport may be denied under 22 
CFR 51.28; or
    (8) The applicant is subject to an order of restraint or 
apprehension issued by an appropriate officer of the United States Armed 
Forces pursuant to chapter 47 of title 10 of the United States Code; or
    (9) The applicant is the subject of an outstanding state or local 
warrant of arrest for a felony; or
    (10) The applicant is the subject of a request for extradition or 
provisional arrest submitted to the United States by a foreign country.
    (c) The Department may refuse to issue a passport in any case in 
which:
    (1) The applicant has not repaid a loan received from the United 
States under 22 U.S.C. 2670(j) for emergency medical attention, dietary 
supplements, and other emergency assistance, including, if applicable, 
assistance provided to his or her child(ren), spouse, and/or other 
immediate family members in a foreign country; or
    (2) The applicant has not repaid a loan received from the United 
States under 22 U.S.C. 2671(b)(2)(B) or 22 U.S.C. 2671(b)(2)(A) for the 
repatriation or evacuation of the applicant and, if applicable, the 
applicant's child(ren), spouse, and/or other immediate family members 
from a foreign country to the United States; or
    (3) The applicant has previously been denied a passport under this 
section or 22 CFR 51.61, or the Department has revoked the applicant's 
passport or issued a limited passport for direct return to the United 
States under 22 CFR 51.62, and the applicant has not shown that there 
has been a change in circumstances since the denial, revocation or 
issuance of a limited passport that warrants issuance of a passport; or
    (4) The Secretary determines that the applicant's activities abroad 
are causing or are likely to cause serious damage to the national 
security or the foreign policy of the United States.
    (d) The Department may refuse to issue a passport in a case in which 
the Department is informed by an appropriate foreign government 
authority or international organization that the applicant is the 
subject of a warrant of arrest for a felony.
    (e) The Department may refuse to issue a passport, except a passport 
for direct return to the United States, in any case in which the 
Department determines or is informed by a competent authority that the 
applicant is a minor who has been abducted, wrongfully removed or 
retained in violation of a court order or decree and return to his or 
her home state or habitual residence is necessary to permit a court of 
competent jurisdiction to determine custody matters.



Sec. 51.61  Denial of passports to certain convicted drug traffickers.

    (a) A passport may not be issued in any case in which the Department 
determines or is informed by competent authority that the applicant is 
subject to imprisonment or supervised release as the result of a felony 
conviction for a Federal or state drug offense, if the individual used a 
U.S. passport or otherwise crossed an international border in committing 
the offense, including a felony conviction arising under:
    (1) The Controlled Substances Act (21 U.S.C. 801 et seq.) or the 
Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.); or
    (2) Any Federal law involving controlled substances as defined in 
section 802 of the Controlled Substances Act (21 U.S.C. 801 et seq.); or
    (3) The Bank Secrecy Act (31 U.S.C. 5311 et seq.) or the Money 
Laundering Act (18 U.S.C. 1956 et seq.) if the Department is in receipt 
of information that supports the determination that the violation 
involved is related to illicit production of or trafficking in a 
controlled substance; or
    (4) Any state law involving the manufacture, distribution, or 
possession of a controlled substance.
    (b) A passport may be refused in any case in which the Department 
determines or is informed by competent authority that the applicant is 
subject to imprisonment or supervised release as the result of a 
misdemeanor conviction of a Federal or state drug offense if the 
individual used a U.S. passport or otherwise crossed an international 
border in committing the offense, other than a

[[Page 245]]

first conviction for possession of a controlled substance, including a 
misdemeanor conviction arising under:
    (1) The Federal statutes described in Sec. 51.61(a); or
    (2) Any State law involving the manufacture, distribution, or 
possession of a controlled substance.
    (c) Notwithstanding paragraph (a) of this section, the Department 
may issue a passport when the competent authority confirms, or the 
Department otherwise finds, that emergency circumstances or humanitarian 
reasons exist.



Sec. 51.62  Revocation or limitation of passports.

    (a) The Department may revoke or limit a passport when
    (1) The bearer of the passport may be denied a passport under 22 CFR 
51.60 or 51.61; or 51.28; or any other provision contained in this part; 
or,
    (2) The passport has been obtained illegally, fraudulently or 
erroneously; was created through illegality or fraud practiced upon the 
Department; or has been fraudulently altered or misused;
    (b) The Department may revoke a passport when the Department has 
determined that the bearer of the passport is not a U.S. national, or 
the Department is on notice that the bearer's certificate of citizenship 
or certificate of naturalization has been canceled.



Sec. 51.63  Passports invalid for travel into or through restricted areas; 

prohibition on passports valid only for travel to Israel.

    (a) The Secretary may restrict the use of a passport for travel to 
or use in a country or area which the Secretary has determined is:
    (1) A country with which the United States is at war; or
    (2) A country or area where armed hostilities are in progress; or
    (3) A country or area in which there is imminent danger to the 
public health or physical safety of United States travelers.
    (b) Any determination made and restriction imposed under paragraph 
(a) of this section, or any extension or revocation of the restriction, 
shall be published in the Federal Register.
    (c) A passport may not be designated as valid only for travel to 
Israel.



Sec. 51.64  Special validation of passports for travel to restricted areas.

    (a) A U.S. national may apply to the Department for a special 
validation of his or passport to permit its use for travel to, or use 
in, a restricted country or area. The application must be accompanied by 
evidence that the applicant falls within one of the categories in 
paragraph (c) of this section.
    (b) The Department may grant a special validation if it determines 
that the validation is in the national interest of the United States.
    (c) A special validation may be determined to be in the national 
interest if:
    (1) The applicant is a professional reporter or journalist, the 
purpose of whose trip is to obtain, and make available to the public, 
information about the restricted area; or
    (2) The applicant is a representative of the International Committee 
of the Red Cross or the American Red Cross traveling pursuant to an 
officially-sponsored Red Cross mission; or
    (3) The applicant's trip is justified by compelling humanitarian 
considerations; or
    (4) The applicant's request is otherwise in the national interest.



Sec. 51.65  Notification of denial or revocation of passport.

    (a) The Department will notify in writing any person whose 
application for issuance of a passport has been denied, or whose 
passport has been revoked. The notification will set forth the specific 
reasons for the denial or revocation, and, if applicable, the procedures 
for review available under 22 CFR 51.70 through 51.74.
    (b) An application for a passport will be denied or treated as 
abandoned if an applicant fails to meet his or her burden of proof under 
22 CFR 51.23(a) and 51.40 or otherwise does not provide documentation 
sufficient to establish entitlement to passport issuance within ninety 
days of notification by the Department that additional information from 
the applicant is required. Thereafter, if an applicant wishes to pursue 
a claim of entitlement to passport issuance, he or she must submit a new 
application and supporting documents,

[[Page 246]]

photographs, and statements in support of the application, along with 
applicable application and execution fees.



Sec. 51.66  Surrender of passport.

    The bearer of a passport that is revoked must surrender it to the 
Department or its authorized representative upon demand.



   Subpart F_Procedures for Review of Certain Denials and Revocations



Sec. 51.70  Request for hearing to review certain denials and revocations.

    (a) A person whose passport has been denied or revoked under 22 CFR 
51.60(b)(1) through (10), 51.60(c), 51.60(d), 51.61(b), 51.62(a)(1) 
where the basis for the adverse action would entitle the applicant to a 
hearing under this section, or Sec. 51.62(a)(2) may request a hearing 
to the Department to review the basis for the denial or revocation 
within 60 days of receipt of the notice of the denial or revocation.
    (b) The provisions of Sec. Sec. 51.70 through 51.74 do not apply to 
any action of the Department taken on an individual basis in denying, 
restricting, revoking, or invalidating a passport or in any other way 
adversely affecting the ability of a person to receive or use a passport 
for reasons excluded from Sec. 51.70(a) including:
    (1) Non-nationality;
    (2) Refusal under the provisions of 51.60(a);
    (3) Refusal to grant a discretionary exception under emergency or 
humanitarian relief provisions of Sec. 51.61(c);
    (4) Refusal to grant a discretionary exception from geographical 
limitations of general applicability.
    (c) If a timely request for a hearing is made, the Department will 
hold it within 60 days of the date the Department receives the request, 
unless the person requesting the hearing asks for a later date and the 
Department and the hearing officer agree.
    (d) The Department will give the person requesting the hearing not 
less than 10 business days' written notice of the date and place of the 
hearing.



Sec. 51.71  The hearing.

    (a) The Department will name a hearing officer, who will make 
findings of fact and submit recommendations based on the record of the 
hearing as defined in Sec. 51.72 to the Deputy Assistant Secretary for 
Passport Services in the Bureau of Consular Affairs.
    (b) The person requesting the hearing may appear in person, or with 
or by his designated attorney. The attorney must be admitted to practice 
in any state of the United States, the District of Columbia, any 
territory or possession of the United States, or be admitted to practice 
before the courts of the country in which the hearing is to be held.
    (c) The person requesting the hearing may testify, offer evidence in 
his or her own behalf, present witnesses, and make arguments at the 
hearing. The person requesting the hearing is responsible for all costs 
associated with the presentation of his or her case. The Department may 
present witnesses, offer evidence, and make arguments in its behalf. The 
Department is responsible for all costs associated with the presentation 
of its case.
    (d) Formal rules of evidence will not apply, but the hearing officer 
may impose reasonable restrictions on relevancy, materiality, and 
competency of evidence presented. Testimony will be under oath or by 
affirmation under penalty of perjury. The hearing officer may not 
consider any information that is not also made available to the person 
requesting the hearing and made a part of the record of the proceeding.
    (e) If any witness is unable to appear in person, the hearing 
officer may, in his or her discretion, accept an affidavit from or order 
a deposition of the witness, the cost for which will be the 
responsibility of the requesting party.



Sec. 51.72  Transcript and record of the hearing.

    A qualified reporter will make a complete verbatim transcript of the 
hearing. The person requesting the hearing and/or his or her attorney 
may review and purchase a copy of the transcript. The hearing transcript 
and the documents received by the hearing officer will constitute the 
record of the hearing.

[[Page 247]]



Sec. 51.73  Privacy of hearing.

    Only the person requesting the hearing, his or her attorney, the 
hearing officer, official reporters, and employees of the Department 
directly concerned with the presentation of the case for the Department 
may be present at the hearing. Witnesses may be present only while 
actually giving testimony or as otherwise directed by the hearing 
officer.



Sec. 51.74  Final decision.

    After reviewing the record of the hearing and the findings of fact 
and recommendations of the hearing officer, the Deputy Assistant 
Secretary for Passport Services will decide whether to uphold the denial 
or revocation of the passport. The Department will promptly notify the 
person requesting the hearing in writing of the decision. If the 
decision is to uphold the denial or revocation, the notice will contain 
the reason(s) for the decision. The decision is final and is not subject 
to further administrative review.



PART 52_MARRIAGES--Table of Contents




Sec.
52.1 Celebration of marriage.
52.2 Authentication of marriage and divorce documents.
52.3 Certification as to marriage laws.

    Authority: Sec. 4, 63 Stat. 111, as amended; 22 U.S.C. 2658.



Sec. 52.1  Celebration of marriage.

    Foreign Service officers are forbidden to celebrate marriages.

[31 FR 13546, Oct. 20, 1966]



Sec. 52.2  Authentication of marriage and divorce documents.

    (a) Whenver a consular officer is requested to authenticate the 
signature of local authorities on a document of marriage when he was not 
a witness to the marriage, he shall include in the body of his 
certificate of authentication the qualifying statement, ``For the 
contents of the annexed document, the Consulate (General) assumes no 
responsibility.''
    (b) A consular officer shall include the same statement in 
certificates of authentication accompanying decrees of divorce.

[31 FR 13546, Oct. 20, 1966. Redesignated at 51 FR 26247, July 22, 1986]



Sec. 52.3  Certification as to marriage laws.

    Although a consular officer may have knowledge respecting the laws 
of marriage, he shall not issue any official certificate with respect to 
such laws.

[31 FR 13546, Oct. 20, 1966. Redesignated at 51 FR 26247, July 22, 1986]



PART 53_PASSPORT REQUIREMENT AND EXCEPTIONS--Table of Contents




Sec.
53.1 Passport requirement; definitions.
53.2 Exceptions.
53.3 Attempt of a citizen to enter without a valid passport.
53.4 Optional use of a valid passport.

    Authority: 8 U.S.C. 1185; 8 U.S.C. 1185 note (section 7209 of Pub. 
L. 108-458); E.O. 13323, 69 FR 241 (Dec. 30, 2003).

    Source: 71 FR 68430, Nov. 24, 2006, unless otherwise noted.



Sec. 53.1  Passport requirement; definitions.

    (a) It is unlawful for a citizen of the United States, unless 
excepted under 22 CFR 53.2, to enter or depart, or attempt to enter or 
depart, the United States, without a valid U.S. passport.
    (b) For purposes of this part ``United States'' means ``United 
States'' as defined in section 215(c) of the Immigration and Nationality 
Act of 1952, as amended (8 U.S.C. 1185(c)).



Sec. 53.2  Exceptions.

    (a) U.S. citizens, as defined in Sec. 41.0 of this chapter, are not 
required to bear U.S. passports when traveling directly between parts of 
the United States as defined in Sec. 51.1 of this chapter.
    (b) A U.S. citizen is not required to bear a valid U.S. passport to 
enter or depart the United States:
    (1) When traveling as a member of the Armed Forces of the United 
States on active duty and when he or she is in the uniform of, or bears 
documents identifying him or her as a member of, such Armed Forces, when 
under official orders or permit of such Armed Forces,

[[Page 248]]

and when carrying a military identification card; or
    (2) When traveling entirely within the Western Hemisphere on a 
cruise ship, and when the U.S. citizen boards the cruise ship at a port 
or place within the United States and returns on the return voyage of 
the same cruise ship to the same United States port or place from where 
he or she originally departed. That U.S. citizen may present a 
government-issued photo identification document in combination with 
either an original or a copy of his or her birth certificate, a Consular 
Report of Birth Abroad issued by the Department, or a Certificate of 
Naturalization issued by U.S. Citizenship and Immigration Services 
before entering the United States; if the U.S. citizen is under the age 
of 16, he or she may present either an original or a copy of his or her 
birth certificate, a Consular Report of Birth Abroad issued by the 
Department, or a Certificate of Naturalization issued by U.S. 
Citizenship and Immigration Services; or
    (3) When traveling as a U.S. citizen seaman, carrying an unexpired 
Merchant Marine Document (MMD) in conjunction with maritime business. 
The MMD is not sufficient to establish citizenship for purposes of 
issuance of a United States passport under part 51 of this chapter; or
    (4) Trusted traveler programs--(i) NEXUS Program. When traveling as 
a participant in the NEXUS program, he or she may present a valid NEXUS 
program card when using a NEXUS Air kiosk or when entering the United 
States from contiguous territory or adjacent islands at a land or sea 
port-of-entry. A U.S. citizen who enters the United States by pleasure 
vessel from Canada under the remote inspection system may also present a 
NEXUS program card;
    (ii) FAST program. A U.S. citizen who is traveling as a participant 
in the FAST program may present a valid FAST card when entering the 
United States from contiguous territory or adjacent islands at a land or 
sea port-of-entry;
    (iii) SENTRI program. A U.S. citizen who is traveling as a 
participant in the SENTRI program may present a valid SENTRI card when 
entering the United States from contiguous territory or adjacent islands 
at a land or sea port-of-entry; The NEXUS, FAST, and SENTRI cards are 
not sufficient to establish citizenship for purposes of issuance of a 
U.S. passport under part 51 of this chapter; or
    (5) When arriving at land ports of entry and sea ports of entry from 
contiguous territory or adjacent islands, Native American holders of 
American Indian Cards (Form I-872) issued by U.S. Citizenship and 
Immigration Services (USCIS) may present those cards; or
    (6) When arriving at land or sea ports of entry from contiguous 
territory or adjacent islands, U.S. citizen holders of a tribal document 
issued by a United States qualifying tribal entity or group of United 
States qualifying tribal entities as provided in 8 CFR 235.1(e) may 
present that document. Tribal documents are not sufficient to establish 
citizenship for purposes of issuance of a United States passport under 
part 51 of this chapter; or
    (7) When bearing documents or combinations of documents the 
Secretary of Homeland Security has determined under Section 7209(b) of 
Public Law 108-458 (8 U.S.C. 1185 note) are sufficient to denote 
identity and citizenship. Such documents are not sufficient to establish 
citizenship for purposes of issuance of a U.S. passport under part 51 of 
this chapter; or
    (8) When the U.S. citizen is employed directly or indirectly on the 
construction, operation, or maintenance of works undertaken in 
accordance with the treaty concluded on February 3, 1944, between the 
United States and Mexico regarding the functions of the International 
Boundary and Water Commission (IBWC), TS 994, 9 Bevans 1166, 59 Stat. 
1219, or other related agreements, provided that the U.S. citizen bears 
an official identification card issued by the IBWC and is traveling in 
connection with such employment; or
    (9) When the Department of State waives, pursuant to EO 13323 of 
December 30, 2003, Section 2, the requirement with respect to the U.S. 
citizen because there is an unforeseen emergency; or

[[Page 249]]

    (10) When the Department of State waives, pursuant to EO 13323 of 
December 30, 2003, Sec 2, the requirement with respect to the U.S. 
citizen for humanitarian or national interest reasons; or
    (11) When the U.S. citizen is a child under the age of 19 arriving 
from contiguous territory in the following circumstances:
    (i) Children under age 16. A United States citizen who is under the 
age of 16 is permitted to present either an original or a copy of his or 
her birth certificate, a Consular Report of Birth Abroad, or a 
Certificate of Naturalization issued by U.S. Citizenship and Immigration 
Services when entering the United States from contiguous territory at 
land or sea ports-of-entry; or
    (ii) Groups of children under age 19. A U.S. citizen who is under 
age 19 and who is traveling with a public or private school group, 
religious group, social or cultural organization, or team associated 
with a youth sport organization may present either an original or a copy 
of his or her birth certificate, a Consular Report of Birth Abroad, or a 
Certificate of Naturalization issued by U.S. Citizenship and Immigration 
Services when arriving in the United States from contiguous territory at 
all land or sea ports of entry, when the group, organization or team is 
under the supervision of an adult affiliated with the organization and 
when the child has parental or legal guardian consent to travel. For 
purposes of this paragraph, an adult is considered to be a person who is 
age 19 or older. The following requirements will apply:
    (A) The group, organization, or team must provide to CBP upon 
crossing the border on organizational letterhead:
    (1) The name of the group, organization or team, and the name of the 
supervising adult;
    (2) A list of the children on the trip; and
    (3) For each child, the primary address, primary phone number, date 
of birth, place of birth, and the name of at least one parent or legal 
guardian.
    (B) The adult leading the group, organization, or team must 
demonstrate parental or legal guardian consent by certifying in the 
writing submitted in paragraph (b)(11)(ii)(A) of this section that he or 
she has obtained for each child the consent of at least one parent or 
legal guardian.
    (C) The procedure described in this paragraph is limited to members 
of the group, organization, or team who are under age 19. Other members 
of the group, organization, or team must comply with other applicable 
document and/or inspection requirements found in 8 CFR parts 211, 212, 
or 235.

[73 FR 18419, Apr. 3, 2008]



Sec. 53.3  Attempt of a citizen to enter without a valid passport.

    The appropriate officer at the port of entry shall report to the 
Department of State any citizen of the United States who attempts to 
enter the United States contrary to the provisions of this part, so that 
the Department of State may apply the waiver provisions of Sec. 53.2(h) 
and Sec. 53.2(i) to such citizen, if appropriate.



Sec. 53.4  Optional use of a valid passport.

    Nothing in this part shall be construed to prevent a citizen from 
using a valid U.S. passport in a case in which that passport is not 
required by this part 53, provided such travel is not otherwise 
prohibited.

[[Page 250]]



               SUBCHAPTER G_PUBLIC DIPLOMACY AND EXCHANGES



PART 61_WORLD-WIDE FREE FLOW OF AUDIO-VISUAL MATERIALS--Table of Contents




Sec.
61.1 Purpose.
61.2 Definitions.
61.3 Certification and au