CHAPTER 3 --
ISSUANCE OF ENTRY DOCUMENTS
INA: ACT 221 - ISSUANCE OF VISAS
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Sec. 221. [8 U.S.C. 1201]
(a) (1) 1a/ Under the conditions hereinafter prescribed and subject to the limitations prescribed in this Act or regulations issued thereunder, a consular officer may issue (A) 1a/ to an immigrant who has made proper application therefor, an immigrant visa which shall consist of the application provided for in section 222, visaed by such consular officer, and shall specify the foreign state, if any, to which the immigrant is charged, the immigrant's particular status under such foreign state, the preference, immediate relative, or special immigrant classification to which the alien is charged, the date on which the validity of the visa shall expire, and such additional information a s may be required; and (B) 1a/ to a nonimmigrant who has made proper application therefor, a nonimmigrant visa, which shall specify the classification under section 101(a)(15) of the nonimmigrant, the period during which the nonimmigrant visa shall be valid, and such additional information as may be
required.
(2) 1a/ The Secretary of State shall provide to the Service an electronic version of the visa file of each alien who has been issued a visa to ensure that the data in that visa file is available to immigration inspectors at the United States ports of entry before the arrival of the alien at such a port of entry.
(b) Each alien who applies for a visa shall be registered in connection with his application, and shall furnish copies of his photograph signed by him for such use as may be by regulations required. The requirements of this subsection may be waived in the discretion of the Secretary of State in the case of any alien who is within that class of nonimmigrants enumerated in sections 101(a)(15)(A) , and 101(a)(15)(G) , or in the case of any alien who is granted a diplomatic visa on a diplomatic passport or on the equivalent thereof.
(c) An immigrant visa shall be valid for such period, not exceeding six months, 1/ as shall be by regulations prescribed, except that any visa issued to a child lawfully adopted by a United States citizen and spouse while such citizen is serving abroad in the United States Armed Forces, or is employed abroad by the United States Government, or is temporarily abroad on business, shall be valid until such time, for a period not to exceed three years, as the adoptive citizen parent returns to the United States in due course of his service, employment, or business. A nonimmigrant vis a shall be valid for such periods as shall be by regulations prescribed. In prescribing the period of validity of a nonimmigrant visa in the case of nationals of any foreign country who are eligible for such visas, the Secretary of State shall, insofar as practicable, accord to such nationals the same treatment upon a reciprocal basis as such foreign country accords to nationals of the United States who are within a similar class; except that in the case of aliens who are nationals of a foreign cou ntry and who either are granted refugee status and firmly resettled in another foreign country or are granted permanent residence and residing in another foreign country, the Secretary of State may prescribe the period of validity of such a visa based upon the treatment granted by that other foreign country to alien refugees and permanent residents, respectively, in the United States. 2/ An immigrant visa may be replaced under the original number during the fiscal year in which the original visa was issued for an immigrant who establishes to the satisfaction of the consular officer that he was unable to use the original immigrant visa during the period of its validity because of reasons beyond his control and for which he was not responsible: Provided, That the immigrant is found by the consular officer to be eligible for an immigrant visa and the immigrant pays again the statutory fees for an application and an immigrant visa.
(d) Prior to the issuance of an immigrant visa to any alien, the consular officer shall require such alien to submit to a physical and mental examination in accordance with such regulations as may be prescribed. Prior to the issuance of a nonimmigrant visa to any alien, the consular officer may require such alien to submit to a physical or mental examination, or both, if in his opinion such examination is necessary to ascertain whether such alien is eligible to receive a visa.
(e) Each immigrant shall surrender his immigrant visa to the immigration officer at the port of entry, who shall endorse on the visa the date and the port of arrival, the identity of the vessel or other means of transportation by which the immigrant arrived, and such other endorsements as may be by regulations required.
(f) Each nonimmigrant shall present or surrender to the immigration officer at the port of entry such documents as may be by regulation required. In the case of an alien crewman not in possession of any individual documents other than a passport and until such time as it becomes practicable to issue individual documents, such alien crewman may be admitted, subject to the provisions of this title, if his name appears in the crew list of the vessel or aircraft on which he arrives and the crew list is visaed by a consular officer, but the consular officer shall have the right to deny admission to any alien crewman from the crew list visa.
(g) No visa or other documentation shall be issued to an alien if (1) it appears to the consular officer, from statements in the application, or in the papers submitted therewith, that such alien is ineligible to receive a visa or such other documentation under section 212, or any other provision of law, (2) the application fails to comply with the provisions of this Act, or the regulations issued thereunder, or (3) the consular officer knows or has reason to believe that such alien is ineligible to receive a visa or such other documentation under section 212, or any other provision of law: Provided, That a visa or other documentation may be issued to an alien who is within the purview of section 212(a)(4) , if such alien is otherwise entitled to receive a visa or other documentation, upon receipt of notice by the consular officer from the Attorney General of the giving of a bond or undertaking providing indemnity as in the case of aliens admitted under section 213: Provided further, That a visa may be issued to an alien defined in section 101(a)(15) (B) or (F) , if such alien is otherwise entitled to receive a visa, upon receipt of a notice by the consular officer from the Attorney General of the giving of a bond with sufficient surety in such sum and containing such conditions as the consular officer shall prescribe, to insure that at the expiration of the time for which such alien has been admitted by the Attorney General, as provided in section 214(a) , or upon failure to maintain the status under which he was admitted, or to maintain any status subsequently acquired under section 248 of the Act, such alien will depart from the United States.
(h) Nothing in this Act shall be construed to entitle any alien, to whom a visa or other documentation has been issued, to be admitted the United States, if, upon arrival at a port of entry in the United States, he is found to be inadmissible under this Act, or any other provision of law. The substance of this subsection shall appear upon every visa application.
(i) After the issuance of a visa or other documentation to any alien, the consular officer or the Secretary of State may at any time, in his discretion, revoke such visa or other documentation. Notice of such revocation shall be communicated to the Attorney General, and such revocation shall invalidate the visa or other documentation from the date of issuance: Provided, That carriers or transportation companies, and masters, commanding officers, agents, owners, charterers, or consignees, shall not be penalized under section 273(b) for action taken in reliance on such visas or other documentation, unless they received due notice of such revocation prior to the alien's embarkation. 3/ There shall be no means of judicial review (including review pursuant to section 2241 of title 28, United States Code, or any other habeas corpus provision, and sections 1361 and 1651 of such title) of a revocation under this subsection, except in the context of a removal proceeding if such revocation provides the sole ground for removal under section 237(a)(1)(B) .
FOOTNOTES FOR SECTION 221
FN 1a S ection 301 of Public Law 107-173, Enhanced Border Security and Visa Entry Reform Act of 2002, dated May 14, 2002, amended section 221(a) by redesignating paragraphs (1) and (2) as subparagraphs (A) and (B) respectively, by adding a (1) immediately after (a) and by adding a new paragraph (2).
Effective Date - The amendments made by this section shall take effect on the date of enactment of this Act (Public Law 108-458 ) and shall apply to revocations under sections 205 and 221(i)of the Immigration and Nationality Act (8 U.S.C. 1155, 1201(i)) made before, on, or after such date.
INA: ACT 222 - APPLICATIONS FOR VISAS
Sec. 222. [8 U.S.C. 1202]
(a) Every alien applying for an immigrant visa and for alien registration shall make application therefor in such form and manner and at such place as shall be by regulations prescribed. In the application the alien shall state his full and true name, and any other name which he has used or by which he has been known; age and sex; the date and place of his birth; and such additional information necessary to the identification of the applicant and the enforcement of the immigration and nationality la ws as may be by regulations prescribed.
(b) Every alien applying for an immigrant visa shall present a valid unexpired passport or other suitable travel document, or document of identity and nationality, if such document is required under the regulations issued by the Secretary of State. The immigrant shall furnish to the consular officer with his application a copy of a certification by the appropriate police authorities stating what their records show concerning the immigrant; a certified copy of any existing prison record, military record, and rec ord of his birth; and a certified copy of all other records or documents concerning him or his case which may be required by the consular officer. The copy of each document so furnished shall be permanently attached to the application and become a part thereof. In the event that the immigrant establishes to the satisfaction of the consular officer that any document or record required by this subsection is unobtainable, the consular officer may permit the immigrant to submit in lieu of such document or recor d other satisfactory evidence of the fact to which such document or record would, if obtainable, pertain. 1b/ All immigrant visa applications shall be reviewed and adjudicated by a consular officer.
(c) Every alien applying for a nonimmigrant visa and for alien registration shall make application therefor in such form and manner as shall be by regulations prescribed. In the application the alien shall state his full and true name, the date and place of birth, his nationality, the purpose and length of his intended stay in the United States; his marital status; and such additional information necessary to the identification of the applicant, the determination of his eligibility for a nonimmigrant visa, and the enforcement of the immigration and nationality laws as may be by regulations prescribed . 3/ The alien shall provide complete and accurate information in response to any request for information contained in the application. At the discretion of the Secretary of State, application forms for the various classes of nonimmigrant admissions described in section 101(a)(15) may vary according to the class of visa being requested.
(d) Every alien applying for a nonimmigrant visa and alien registration shall furnish to the consular officer, with his application, a certified copy of such documents pertaining to him as may be by regulations required. 1b/ All nonimmigrant visa applications shall be reviewed and adjudicated by a consular officer.
(e) Except as may be otherwise prescribed by regulations, each application for an immigrant visa shall be signed by the applicant in the presence of the consular officer, and verified by the oath of the applicant administered by the consular officer. The application for an immigrant visa, when visaed by the consular officer, shall become the immigrant visa. The application for a nonimmigrant visa or other documentation as a nonimmigrant shall be disposed of as may be by regulations prescribed. The i ssuance of a nonimmigrant visa shall, except as may be otherwise by regulations prescribed, be evidenced by a stamp, or other 1/ placed in the alien's passport.
(f) The records of the Department of State and of diplomatic and consular offices of the United States pertaining to the issuance or refusal of visas or permits to enter the United States shall be considered confidential and shall be used only for the formulation, amendment, administration, or enforcement of the immigration, nationality, and other laws of the United States, 1a/ except that--
(1) in the discretion of the Secretary of State certified copies of such records may be made available to a court which certifies that the information contained in such records is needed by the court in the interest of the ends of justice in a case pending before the court.
(2) the Secretary of State, in the Secretary's discretion and on the basis of reciprocity, may provide to a foreign government information in the Department of State's computerized visa lookout database and, when necessary and appropriate, other records covered by this section related to information in the database--
(A) with regard to individual aliens, at any time on a case-by-case basis for the purpose of preventing, investigating, or punishing acts that would constitute a crime in the United States, including, but not limited to, terrorism or trafficking in controlled substances, persons, or illicit weapons; or
(B) with regard to any or all aliens in the database, pursuant to such conditions as the Secretary of State shall establish in an agreement with the foreign government in which that government agrees to use such information and records for the purposes described in subparagraph (A) or to deny visas to persons who would be inadmissible to the United States.
(g) 2/ (1) In the case of an alien who has been admitted on the basis of a nonimmigrant visa and remained in the United States beyond the period of stay authorized by the Attorney General, such visa shall be void beginning after the conclusion of such period of stay.
(2) An alien described in paragraph (1) shall be ineligible to be readmitted to the United States as a nonimmigrant, except-
(A) on the basis of a visa (other than the visa described in paragraph (1) issued in a consular office located in the country of the alien's nationality (or, if there is no office in such country, in such other consular office as the Secretary of State shall specify); or
(h) 4/ Notwithstanding any other provision of this Act, the Secretary of State shall require every alien applying for a nonimmigrant visa--
(1) who is at least 14 years of age and not more than 79 years of age to submit to an in person interview with a consular officer unless the requirement for such interview is waived--
(A) by a consular official and such
alien is--
(i) within that class of nonimmigrants enumerated in subparagraph (A) or (G) of section 101(a)(15) ;
(ii) within the NATO visa category;
(iii) within that class of nonimmigrants enumerated in section 101(a)(15)(C)(iii) (referred to as the `C-3 visa' category); or
(iv) granted a diplomatic or official visa on a diplomatic or official passport or on the equivalent thereof;
(B) by a consular official and such alien is applying for a visa--
(i) not more than 12 months after the date on which such alien's prior visa expired;
(ii) for the visa classification for which such prior visa was issued;
(iii) from the consular post located in the country of such alien's usual residence, unless otherwise prescribed in regulations that require an applicant to apply for a visa in the country of which such applicant is a national; and
(iv) the consular officer has no indication that such alien has not complied with the immigration laws and regulations of the United States; or
(C) by the Secretary of State if the Secretary determines that such waiver is--
(i) in the national interest of the United States; or
(ii) necessary as a result of unusual or emergent circumstances; and
(2) notwithstanding paragraph (1), to submit to an in person interview with a consular officer if such alien--
(A) is not a national or resident of the country in which such alien is applying for a visa;
(B) was previously refused a visa, unless such refusal was overcome or a waiver of ineligibility has been obtained;
(C) is listed in the Consular Lookout and Support System (or successor system at the Department of State);
(D) is a national of a country officially designated by the Secretary of State as a state sponsor of terrorism, except such nationals who possess nationalities of countries that are not designated as state sponsors of terrorism;
(E) requires a security advisory opinion or other Department of State clearance, unless such alien is--
(i) within that class of nonimmigrants enumerated in subparagraph (A) or (G) of section 101(a)(15);
(ii) within the NATO visa category;
(iii) within that class of nonimmigrants enumerated in section 101(a)(15)(C)(iii) (referred to as the 'C-3 visa' category); or
(iv) an alien who qualifies for a diplomatic or official visa, or its equivalent; or
(i) poses a substantial risk of submitting inaccurate information in order to obtain a visa;
(ii) has historically had visa applications denied at a rate that is higher than the average rate of such denials; or
(iii) poses a security threat to the United States.
FOOTNOTES FOR SECTION 222
FN 1a Section 222(f) amended by section 413 of the USA Patriot Act, Public Law 107-56, dated October 26, 2001
FN 1b Section 7203(b)(1) and (2) amended section 222(b) and (d) respectively, by adding a last sentence to each subparagraph.
FN 2 Section 222(g)(1) was added by § 632(a) of IIRIRA and will apply to a visa issued before, on, or after the date of the enactment of this Act. Section 222(g)(2) was added by § 632(b) of IIRIRA and will apply to any alien applying for readmission to the United States after the date of the enactment of this Act, except an alien applying for readmission on the basis on a visa that- (A) was issued before such date; and (B) is not void through the application of section 222(g)(1) of the Immigration and Nationality Act, as added by subsection (a) of § 632 of IIRIRA .
FN 3 Section 5302 of Public Law 108-458, added a sentence immediately after the second sentence to read: "The alien shall provide complete and accurate information in response to any request for information contained in the application." Effective 90 days after the effective date of Public Law 108-458..
FN 4 Section 5301 of Public Law 108-458, added a new subsection (h). Effective 90 days after the date of enactment of Public Law 108-458.
INA: ACT 223 - REENTRY PERMITS
Sec. 223. [8 U.S.C. 1203]
(2) any alien lawfully admitted to the United States pursuant to clause 6 of section 3 of the Immigration Act of 1924, between July 1, 1924, and July 5, 1932, both dates inclusive, who intends to depart temporarily from the United States may make application to the Attorney General for a permit to reenter the United States, stating the length of his intended absence or absences, and the reasons therefor. Such application shall be made under oath, and shall be in such form, contain such information, and be accompanied by such photographs of the applicant as may be by regulations prescribed.
(1) that the applicant under subsection (a)(1) has been lawfully admitted to the United States for permanent residence, or that the applicant under subsection (a)(2) has since admission maintained the status required of him at the time of his admission and such applicant desires to visit abroad and to return to the United States to resume the status existing at the time of his departure for such visit,
(3) that the alien's proposed departure from the United States would not be contrary to the interests of the United States, the Attorney General may, in his discretion, issue the permit, which shall be valid for not more than two years from the date of issuance and shall not be renewable. The permit shall be in such form as shall be by regulations prescribed for the complete identification of the alien.
(c) During the period of validity, such permit may be used by the alien in making one or more applications for reentry into the United States.
(d) Upon the return of the alien to the United States the permit shall be presented to the immigration officer at the port of entry, and upon the expiration of its validity, the permit shall be surrendered to the Service.
(e) A permit issued under this section in the possession of the person to whom issued, shall be accepted in lieu of any visa which otherwise would be required from such person under this Act. Otherwise a permit issued under this section shall have no effect under the immigration laws except to show that the alien to whom it was issued is returning from a temporary visit abroad; but nothing in this section shall be construed as making such permit the exclusive means of establishing that the alien is so returning.
INA: ACT 224 - IMMEDIATE RELATIVE AND SPECIAL
IMMIGRANT VISAS
Sec. 224. [8 U.S.C. 1204] A consular officer may, subject to the limitations provided in section 221 , issue an immigrant visa to a special immigrant or immediate relative as such upon satisfactory proof, under regulations prescribed under this Act, that the applicant is entitled to special immigrant or immediate relative status.
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