Authorizing Legislation Part III

§ 212.7

8 CFR Ch. I (1–1–23 Edition)

admissibility in accordance with § 235.6
of this chapter. The applicant may be
represented at this hearing by an attorney of his/her own choice at no expense to the Government. He or she
shall also be advised of the availability
of free legal services provided by organizations and attorneys qualified under
8 CFR part 3, and organizations recognized under § 292.2 of this chapter located in the district where the removal
hearing is to be held. If the applicant
requests a hearing, the Form DSP–150
or combined B–1/B–2 visitor visa and
non-biometric border crossing identification card (or similar stamp in a
passport), issued by the DOS, shall be
held by the Service for presentation to
the immigration judge.
(ii) If the applicant chooses not to
have a hearing, the Form DSP–150 or
combined B–1/B–2 visitor visa and nonbiometric BCC (or similar stamp in a
passport) issued by the DOS, shall be
voided and physically cancelled. The
alien to whom the card or stamp was
issued by the DOS shall be notified of
the action taken and the reasons for
such action by means of Form I–275,
Withdrawal of Application for Admission/Consular Notification, delivered in
person or by mailing the Form I–275 to
the last known address. The DOS shall
be notified of the cancellation of the
biometric Form DSP–150 or combined
B–1/B–2 visitor visa and non-biometric
BCC (or similar stamp in a passport)
issued by DOS, by means of a copy of
the original Form I–275. Nothing in
this paragraph limits the Service’s
ability to remove an alien pursuant to
8 CFR part 235 where applicable.
(2) Within the United States. In accordance with former section 242 of the Act
(before amended by section 306 of the
IIRIRA of 1996, Div. C, Public Law 104–
208, 110 Stat. 3009 (Sept. 30, 1996,) or
current sections 235(b), 238, and 240 of
the Act, if the holder of a Form DSP–
150, or other combined B–1/B–2 visa and
BCC, or (similar stamp in a passport)
issued by the DOS, is placed under removal proceedings, no action to cancel
the card or stamp shall be taken pending the outcome of the hearing. If the
alien is ordered removed or granted
voluntary departure, the card or stamp
shall be physically cancelled and voided by an immigration officer. In the

case of an alien holder of a BCC who is
granted voluntary departure without a
hearing, the card shall be declared void
and physically cancelled by an immigration officer who is authorized to
issue a Notice to Appear or to grant
voluntary departure.
(3) In Mexico or Canada. Forms I–185,
I–186 or I–586 issued by the Service and
which are now invalid, or a Form DSP–
150 or combined B–1/B–2 visitor visa
and non-biometric BCC, or (similar
stamp in a passport) issued by the DOS
may be declared void by United States
consular officers or United States immigration officers in Mexico or Canada.
(4) Grounds. Grounds for voidance of a
Form I–185, I–186, I–586, a DOS-issued
non-biometric BCC, or the biometric
Form DSP–150 shall be that the holder
has violated the immigration laws;
that he/she is inadmissible to the
United States; that he/she has abandoned his/her residence in the country
upon which the card was granted; or if
the BCC is presented for admission on
or after October 1, 2002, it does not contain a machine-readable biometric
identifier corresponding to the bearer
and is invalid on or after October 1,
2002.
(e) Replacement. If a valid Border
Crossing Card (Forms I–185, I–186, or I–
586) previously issued by the Service, a
non-biometric border crossing card
issued by the DOS before April 1998, or
a Form DSP–150 issued by the DOS has
been lost, stolen, mutilated, or destroyed, the person to whom the card
was issued may apply for a new card as
provided for in the DOS regulations
found at 22 CFR 41.32 and 22 CFR 41.103.
[67 FR 71448, Dec. 2, 2002, as amended at 78
FR 18472, Mar. 27, 2013]

§ 212.7 Waiver of certain grounds of inadmissibility.
(a)(1) Application. Except as provided
by 8 CFR 212.7(e), an applicant for an
immigrant visa, adjustment of status,
or a K or V nonimmigrant visa who is
inadmissible under any provision of
section 212(a) of the Act for which a
waiver is available under section 212 of
the Act may apply for the related waiver by filing the form designated by
USCIS, with the fee prescribed in 8
CFR 106.2, and in accordance with the

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§ 212.7

form instructions. Certain immigrants
may apply for a provisional unlawful
presence waiver of inadmissibility as
specified in 8 CFR 212.7(e).
(2) Termination of application for lack
of prosecution. An applicant may withdraw the application at any time prior
to the final decision, whereupon the
case will be closed and the consulate
notified. If the applicant fails to prosecute the application within a reasonable time either before or after interview the applicant shall be notified
that if he or she fails to prosecute the
application within 30 days the case will
be closed subject to being reopened at
the applicant’s request. If no action
has been taken within the 30-day period immediately thereafter, the case
will be closed and the appropriate consul notified.
(3) Decision. If the waiver application
is denied, USCIS will provide a written
decision and notify the applicant and
his or her attorney or accredited representative and will advise the applicant of appeal procedures, if any, in accordance with 8 CFR 103.3. The denial
of a provisional unlawful presence
waiver is governed by 8 CFR 212.7(e).
(4) Validity. (i) A provisional unlawful
presence waiver granted according to
paragraph (e) of this section is valid
subject to the terms and conditions as
specified in paragraph (e) of this section. In any other case, approval of an
immigrant waiver of inadmissibility
under this section applies only to the
grounds of inadmissibility, and the related crimes, events, or incidents that
are specified in the application for
waiver.
(ii) Except for K–1 and K–2 nonimmigrants and aliens lawfully admitted for permanent residence on a conditional basis, an immigrant waiver of
inadmissibility is valid indefinitely,
even if the applicant later abandons or
otherwise loses lawful permanent resident status.
(iii) For a K–1 or K–2 nonimmigrant,
approval of the waiver is conditioned
on the K–1 nonimmigrant marrying the
petitioner; if the K–1 nonimmigrant
marries the K nonimmigrant petitioner, the waiver becomes valid indefinitely, subject to paragraph (a)(4)(iv) of
this section, even if the applicant later
abandons or otherwise loses lawful per-

manent resident status. If the K–1 does
not marry the K nonimmigrant petitioner, the K–1 and K–2 nonimmigrants
remain inadmissible for purposes of
any application for a benefit on any
basis other than the proposed marriage
between the K–1 and the K nonimmigrant petitioner.
(iv) For an alien lawfully admitted
for permanent residence on a conditional basis under section 216 of the
Act, removal of the conditions on the
alien’s status renders the waiver valid
indefinitely, even if the applicant later
abandons or otherwise loses lawful permanent resident status. Termination of
the alien’s status as an alien lawfully
admitted for permanent residence on a
conditional basis also terminates the
validity of a waiver of inadmissibility
based on sections 212(h) or 212(i) of the
Act that was granted to the alien. Separate notification of the termination of
the waiver is not required when an
alien is notified of the termination of
residence under section 216 of the Act,
and no appeal will lie from the decision
to terminate the waiver on this basis.
If the alien challenges the termination
in removal proceedings, and the removal proceedings end in the restoration of the alien’s status, the waiver
will become effective again.
(v) Nothing in this subsection precludes USCIS from reopening and reconsidering a decision if the decision is
determined to have been made in error.
(b) Section 212(g) waivers for certain
medical conditions—(1) Application. Any
alien who is inadmissible under section
212(a)(1)(A)(i), (ii), or (iii) of the Act
and who is eligible for a waiver under
section 212(g) of the Act may file an application as described in paragraph
(a)(1) of this section. The family member specified in section 212(g) of the Act
may file the waiver application for the
applicant if the applicant is incompetent to file the waiver personally.
(2) Section 212(a) (1) or (3) (certain mental conditions)—(i) Arrangements for submission of medical report. If the alien is
excludable
under
section
212(a)(1)(A)(iii) of the Act he or his
sponsoring family member shall submit a waiver request with a statement
that arrangements have been made for
the submission to that office of a medical report. The medical report shall

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§ 212.7

8 CFR Ch. I (1–1–23 Edition)

contain a complete medical history of
the alien, including details of any hospitalization or institutional care or
treatment for any physical or mental
condition; findings as to the current
physical condition of the alien, including reports of chest X-ray examination
and of serologic test for syphilis if the
alien is 15 years of age or over, and
other pertinent diagnostic tests; and
findings as to the current mental condition of the alien, with information as
to prognosis and life expectancy and
with a report of a psychiatric examination conducted by a psychiatrist who
shall, in case of mental retardation,
also provide an evaluation of the
alien’s intelligence. For an alien with a
past history of mental illness, the medical report shall also contain available
information on which the U.S. Public
Health Service can base a finding as to
whether the alien has been free of such
mental illness for a period of time sufficient in the light of such history to
demonstrate recovery.
(ii) Submission of statement. Upon
being notified that the medical report
has been reviewed by the U.S. Public
Health Service and determined to be
acceptable, the alien or the alien’s
sponsoring family member shall submit a statement to the consular or
Service office. The statement must be
from a clinic, hospital, institution, specialized facility, or specialist in the
United States approved by the U.S.
Public Health Service. The alien or
alien’s sponsor may be referred to the
mental retardation or mental health
agency of the state of proposed residence for guidance in selecting a postarrival medical examining authority
who will complete the evaluation and
provide an evaluation report to the
Centers for Disease Control. The statement must specify the name and address of the specialized facility, or specialist, and must affirm that:
(A) The specified facility or specialist
agrees to evaluate the alien’s mental
status and prepare a complete report of
the findings of such evaluation.
(B) The alien, the alien’s sponsoring
family member, or another responsible
person has made complete financial arrangements for payment of any charges
that may be incurred after arrival for
studies, care, training and service;

(C) The Director, Division of Quarantine, Center for Prevention Services,
Centers for Disease Control, Atlanta,
GA. 30333 shall be furnished:
(1) The report evaluating the alien’s
mental status within 30 days after the
alien’s arrival; and
(2) Prompt notification of the alien’s
failure to report to the facility or specialist within 30 days after being notified by the U.S. Public Health Service
that the alien has arrived in the United
States.
(D) The alien shall be in an outpatient, inpatient, study, or other specified status as determined by the responsible local physician or specialist
during the initial evaluation.
(3) Assurances: Bonds. In all cases
under paragraph (b) of this section the
alien or his or her sponsoring family
member shall also submit an assurance
that the alien will comply with any
special travel requirements as may be
specified by the U.S. Public Health
Service and that, upon the admission
of the alien into the United States, he
or she will proceed directly to the facility or specialist specified for the initial evaluation, and will submit to such
further examinations or treatment as
may be required, whether in an outpatient, inpatient, or other status. The
alien, his or her sponsoring family
member, or other responsible person
shall provide such assurances or bond
as may be required to assure that the
necessary expenses of the alien will be
met and that he or she will not become
a public charge. For procedures relating to cancellation or breaching of
bonds, see part 103 of this chapter.
(c) Section 212(e). (1) An alien who was
admitted to the United States as an exchange visitor, or who acquired that
status after admission, is subject to
the foreign residence requirement of
section 212(e) of the Act if his or her
participation in an exchange program
was financed in whole or in part, directly or indirectly, by a United States
government agency or by the government of the country of his or her nationality or last foreign residence.
(2) An alien is also subject to the foreign residence requirement of section

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212(e) of the Act if at the time of admission to the United States as an exchange visitor or at the time of acquisition of exchange visitor status after
admission to the United States, the
alien was a national or lawful permanent resident of a country which the
Director of the United States Information Agency had designated, through
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
was to engage in his or her exchange
visitor program.
(3) An alien is also subject to the foreign residence requirement of section
212(e) of the Act if he or she was admitted to the United States as an exchange visitor on or after January 10,
1977 to receive graduate medical education or training, or following admission, acquired such status on or after
that date for that purpose. However, an
exchange visitor already participating
in an exchange program of graduate
medical education or training as of
January 9, 1977 who was not then subject to the foreign residence requirement of section 212(e) and who proceeds
or has proceeded abroad temporarily
and is returning to the United States
to participate in the same program,
continues to be exempt from the foreign residence requirement.
(4) A spouse or child admitted to the
United States or accorded status under
section 101(a)(15)(J) of the Act to accompany or follow to join an exchange
visitor who is subject to the foreign
residence requirement of section 212(e)
of the Act is also subject to that requirement.
(5) An alien who is subject to the foreign residence requirement and who believes that compliance therewith would
impose exceptional hardship upon his/
her spouse or child who is a citizen of
the United States or a lawful permanent resident alien, or that he or she
cannot return to the country of his or
her nationality or last residence because he or she will be subject to persecution on account of race, religion, or
political opinion, may apply for a waiver on the form designated by USCIS.
The alien’s spouse and minor children,
if also subject to the foreign residence
requirement, may be included in the

application, provided the spouse has
not been a participant in an exchange
program.
(6) Each application based upon a
claim to exceptional hardship must be
accompanied by the certificate of marriage between the applicant and his or
her spouse and proof of legal termination of all previous marriages of the
applicant and spouse; the birth certificate of any child who is a United
States citizen or lawful permanent
resident alien, if the application is
based upon a claim of exceptional hardship to a child, and evidence of the
United States citizenship of the applicant’s spouse or child, when the application is based upon a claim of exceptional hardship to a spouse or child
who is a citizen of the United States.
(7) Evidence of United States citizenship and of status as a lawful permanent resident shall be in the form provided in part 204 of this chapter. An application based upon exceptional hardship shall be supported by a statement,
dated and signed by the applicant, giving a detailed explanation of the basis
for his or her belief that his or her
compliance with the foreign residence
requirement of section 212(e) of the
Act, as amended, would impose exceptional hardship upon his or her spouse
or child who is a citizen of the United
States or a lawful permanent resident
thereof. The statement shall include
all pertinent information concerning
the incomes and savings of the applicant and spouse. If exceptional hardship is claimed upon medical grounds,
the applicant shall submit a medical
certificate from a qualified physician
setting forth in terms understandable
to a layman the nature and effect of
the illness and prognosis as to the period of time the spouse or child will require care or treatment.
(8) An application based upon the applicant’s belief that he or she cannot
return to the country of his or her nationality or last residence because the
applicant would be subject to persecution on account of race, religion, or political opinion, must be supported by a
statement, dated and signed by the applicant, setting forth in detail why the
applicant believes he or she would be
subject to persecution.

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§ 212.7

8 CFR Ch. I (1–1–23 Edition)

(9) Waivers under Pub. L. 103–416 based
on a request by a State Department of
Public Health (or equivalent). In accordance with section 220 of Pub. L. 103–416,
an alien admitted to the United States
as a nonimmigrant under section
101(a)(15)(J) of the Act, or who acquired
status under section 101(a)(15)(J) of the
Act after admission to the United
States, to participate in an exchange
program of graduate medical education
or training (as of January 9, 1977), may
apply for a waiver of the 2-year home
country residence and physical presence requirement (the ‘‘2-year requirement’’) under section 212(e)(iii) of the
Act based on a request by a State Department of Public Health, or its
equivalent. To initiate the application
for a waiver under Pub. L. 103–416, the
Department of Public Health, or its
equivalent, or the State in which the
foreign medical graduate seeks to practice medicine, must request the Director of USIA to recommend a waiver to
the Service. The waiver may be granted only if the Director of USIA provides the Service with a favorable
waiver recommendation. Only the
Service, however, may grant or deny
the waiver application. If granted, such
a waiver shall be subject to the terms
and conditions imposed under section
214(l) of the Act (as redesignated by
section 671(a)(3)(A) of Pub. L. 104–208).
Although the alien is not required to
submit a separate waiver application
to the Service, the burden rests on the
alien to establish eligibility for the
waiver. If the Service approves a waiver request made under Pub. L. 103–416,
the foreign medical graduate (and accompanying dependents) may apply for
change of nonimmigrant status, from
J–1 to H–1B and, in the case of dependents of such a foreign medical graduate, from J–2 to H–4. Aliens receiving
waivers under section 220 of Pub. L.
103–416 are subject, in all cases, to the
provisions of section 214(g)(1)(A) of the
Act.
(i) Eligiblity criteria. J–1 foreign medical graduates (with accompanying J–2
dependents) are eligible to apply for a
waiver of the 2-year requirement under
Pub. L. 103–416 based on a request by a
State Department of Public Health (or
its equivalent) if:

(A) They were admitted to the United
States under section 101(a)(15)(J) of the
Act, or acquired J nonimmigrant status before June 1, 2002, to pursue graduate medical education or training in
the United States.
(B) They have entered into a bona
fide, full-time employment contract for
3 years to practice medicine at a health
care facility located in an area or areas
designated by the Secretary of Health
and Human Services as having a shortage of health care professionals (‘‘HHSdesignated shortage area’’);
(C) They agree to commence employment within 90 days of receipt of the
waiver under this section and agree to
practice medicine for 3 years at the facility named in the waiver application
and only in HHS-designated shortage
areas. The health care facility named
in the waiver application may be operated by:
(1) An agency of the Government of
the United States or of the State in
which it is located; or
(2) A charitable, educational, or
other not-for-profit organization; or
(3) Private medical practitioners.
(D) The Department of Public Health,
or its equivalent, in the State where
the health care facility is located has
requested the Director, USIA, to recommend the waiver, and the Director,
USIA, submits a favorable waiver recommendation to the Service; and
(E) Approval of the waiver will not
cause the number of waivers granted
pursuant to Pub. L. 103–416 and this
section to foreign medical graduates
who will practice medicine in the same
state to exceed 20 during the current
fiscal year.
(ii) Decision on waivers under Pub. L.
103–416 and notification to the alien—(A)
Approval. If the Director of USIA submits a favorable waiver recommendation on behalf of a foreign medical
graduate pursuant to Pub. L. 103–416,
and the Service grants the waiver, the
alien shall be notified of the approval
on Form I–797 (or I–797A or I–797B, as
appropriate). The approval notice shall
clearly state the terms and conditions
imposed on the waiver, and the Service’s records shall be noted accordingly.

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(B) Denial. If the Director of USIA
issues a favorable waiver recommendation under Pub. L. 103–416 and the Service denies the waiver, the alien shall be
notified of the decision and of the right
to appeal under 8 CFR part 103. However, no appeal shall lie where the basis
for denial is that the number of waivers granted to the State in which the
foreign medical graduate will be employed would exceed 20 for that fiscal
year.
(iii) Conditions. The foreign medical
graduate must agree to commence employment for the health care facility
specified in the waiver application
within 90 days of receipt of the waiver
under Pub. L. 103–416. The foreign medical graduate may only fulfill the requisite 3-year employment contract as
an H–1B nonimmigrant. A foreign medical graduate who receives a waiver
under Pub. L. 103–416 based on a request by a State Department of Public
Health (or equivalent), and changes his
or her nonimmigrant classification
from J–1 to H–1B, may not apply for
permanent residence or for any other
change of nonimmigrant classification
unless he or she has fulfilled the 3-year
employment contract with the health
care facility and in the specified HHSdesignated shortage area named in the
waiver application.
(iv) Failure to fulfill the three-year employment contract due to extenuating circumstances. A foreign medical graduate
who fails to meet the terms and conditions imposed on the waiver under section 214(l) of the Act and this paragraph will once again become subject
to the 2-year requirement under section 212(e) of the Act.
Under section 214(l)(1)(B) of the Act,
however, the Service, in the exercise of
discretion, may excuse early termination of the foreign medical graduate’s 3-year period of employment
with the health care facility named in
the waiver application due to extenuating circumstances. Extenuating circumstances may include, but are not
limited to, closure of the health care
facility or hardship to the alien. In determining whether to excuse such early
termination of employment, the Service shall base its decision on the specific facts of each case. In all cases, the
burden of establishing eligibility for a

favorable exercise of discretion rests
with the foreign medical graduate. Depending on the circumstances, closure
of the health care facility named in the
waiver application may, but need not,
be considered an extenuating circumstance excusing early termination
of
employment.
Under
no
circumstances will a foreign medical
graduate be eligible to apply for
change of status to another nonimmigrant category, for an immigrant
visa or for status as a lawful permanent resident prior to completing the
requisite 3-year period of employment
for a health care facility located in an
HHS-designated shortage area.
(v) Required evidence. A foreign medical graduate who seeks to have early
termination of employment excused
due to extenuating circumstances shall
submit documentary evidence establishing such a claim. In all cases, the
foreign medical graduate shall submit
an employment contract with another
health care facility located in an HHSdesignated shortage area for the balance of the required 3-year period of
employment. A foreign medical graduate
claiming
extenuating
circumstances based on hardship shall
also submit evidence establishing that
such hardship was caused by unforeseen circumstances beyond his or her
control. A foreign medical graduate
claiming extenuating circumstances
based on closure of the health care facility named in the waiver application
shall also submit evidence that the facility has closed or is about to be
closed.
(vi) Notification requirements. A J–1
foreign medical graduate who has been
granted a waiver of the 2-year requirement pursuant to Pub. L. 103–416, is required to comply with the terms and
conditions specified in section 214(l) of
the Act and the implementing regulations in this section. If the foreign
medical graduate subsequently applies
for and receives H–1B status, he or she
must also comply with the terms and
conditions of that nonimmigrant status. Such compliance shall also include
notifying USCIS of any material
change in the terms and conditions of
the H–1B employment, by filing either
an amended or a new H–1B petition, as
required,
under
§§ 214.2(h)(2)(i)(D),

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214.2(h)(2)(i)(E), and 214.2(h)(11) of this
chapter.
(A) Amended H–1B petitions. The
health care facility named in the waiver application and H–1B petition shall
file an amended H–1B petition, as required under § 214.2(h)(2)(i)(E) of this
chapter, if there are any material
changes in the terms and conditions of
the beneficiary’s employment or eligibility as specified in the waiver application filed under Pub. L. 103–416 and
in the subsequent H–1B petition. In
such a case, an amended H–1B petition
shall be accompanied by evidence that
the alien will continue practicing medicine with the original employer in an
HHS-designated shortage area.
(B) New H–1B petitions. A health care
facility seeking to employ a foreign
medical graduate who has been granted
a waiver under Pub. L. 103–416 (prior to
the time the alien has completed his or
her 3-year contract with the facility
named in the waiver application and
original H–1B petition), shall file a new
H–1B petition, as required under
§§ 214.2(h)(2)(i) (D) and (E) of this chapter. Although a new waiver application
need not be filed, the new H–1B petition shall be accompanied by the documentary evidence generally required
under § 214.2(h) of this chapter, and the
following additional documents:
(1) A copy of the USCIS approval notice relating to the waiver and nonimmigrant H status granted under Pub.
L. 103–416;
(2) An explanation from the foreign
medical graduate, with supporting evidence, establishing that extenuating
circumstances necessitate a change in
employment;
(3) An employment contract establishing that the foreign medical graduate will practice medicine at the
health care facility named in the new
H–1B petition for the balance of the required 3-year period; and
(4) Evidence that the geographic area
or areas of intended employment indicated in the new H–1B petition are in
HHS-designated shortage areas.
(C) Review of amended and new H–1B
petitions for foreign medical graduates
granted waivers under Pub. L. 103–416
and who seek to have early termination of
employment excused due to extenuating
circumstances—(1) Amended H–1B peti-

tions. The waiver granted under Pub. L.
103–416 may be affirmed, and the
amended H–1B petition may be approved, if the petitioning health care
facility establishes that the foreign
medical graduate otherwise remains eligible for H–1B classification and that
he or she will continue practicing medicine in an HHS-designated shortage
area.
(2) New H–1B petitions. The Service
shall review a new H–1B petition filed
on behalf of a foreign medical graduate
who has not yet fulfilled the required 3year period of employment with the
health care facility named in the waiver application and in the original H–1B
petition to determine whether extenuating circumstances exist which warrant a change in employment, and
whether the waiver granted under Pub.
L. 103–416 should be affirmed. In conducting such a review, the Service
shall determine whether the foreign
medical graduate will continue practicing medicine in an HHS-designated
shortage area, and whether the new H–
1B petitioner and the foreign medical
graduate have satisfied the remaining
H–1B eligibility criteria described
under section 101(a)(15)(H) of the Act
and § 214.2(h) of this chapter. If these
criteria have been satisfied, the waiver
granted to the foreign medical graduate under Pub. L. 103–416 may be affirmed, and the new H1–B petition may
be approved in the exercise of discretion, thereby permitting the foreign
medical graduate to serve the balance
of the requisite 3-year employment period at the health care facility named
in the new H–1B petition.
(D) Failure to notify the Service of any
material changes in employment. Foreign
medical graduates who have been
granted a waiver of the 2-year requirement and who have obtained H–1B status under Pub. L. 103–416 but fail to:
Properly notify the Service of any material change in the terms and conditions of their H–1B employment, by
having their employer file an amended
or a new H–1B petition in accordance
with this section and § 214.2(h) of this
chapter; or establish continued eligibility for the waiver and H–1B status,
shall (together with their dependents)

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again become subject to the 2-year requirement. Such foreign medical graduates and their accompanying H–4 dependents also become subject to deportation under section 241(a)(1)(C)(i) of
the Act.
(10) The applicant and his or her
spouse may be interviewed by an immigration officer in connection with the
application and consultation may be
had with the Director, United States
Information Agency and the sponsor of
any exchange program in which the applicant has been a participant.
(11) The applicant shall be notified of
the decision, and if the application is
denied, of the reasons therefor and of
the right of appeal in accordance with
the provisions of part 103 of this chapter. However, no appeal shall lie from
the denial of an application for lack of
a favorable recommendation from the
Secretary of State. When an interested
United States Government agency requests a waiver of the two-year foreign-residence requirement and the Director, United States Information
Agency had made a favorable recommendation, the interested agency
shall be notified of the decision on its
request and, if the request is denied, of
the reasons thereof, and of the right of
appeal. If the foreign country of the
alien’s nationality or last residence has
furnished statement in writing that it
has no objection to his/her being granted a waiver of the foreign residence requirement and the Director, United
States Information Agency has made a
favorable recommendation, the Director shall be notified of the decision
and, if the foreign residence requirement is not waived, of the reasons
therefor and of the foregoing right of
appeal. However, this ‘‘no objection’’
provision is not applicable to the exchange visitor admitted to the United
States on or after January 10, 1977 to
receive graduate medical education or
training, or who acquired such status
on or after that date for such purpose;
except that the alien who commenced a
program before January 10, 1977 and
who was readmitted to the United
States on or after that date to continue participation in the same program, is eligible for the ‘‘no objection’’
waiver.

(d) Criminal grounds of inadmissibility
involving violent or dangerous crimes.
The Attorney General, in general, will
not favorably exercise discretion under
section 212(h)(2) of the Act (8 U.S.C.
1182(h)(2)) to consent to an application
or reapplication for a visa, or admission to the United States, or adjustment of status, with respect to immigrant aliens who are inadmissible
under section 212(a)(2) of the Act in
cases involving violent or dangerous
crimes, except in extraordinary circumstances, such as those involving
national security or foreign policy considerations, or cases in which an alien
clearly demonstrates that the denial of
the application for adjustment of status or an immigrant visa or admission
as an immigrant would result in exceptional and extremely unusual hardship.
Moreover, depending on the gravity of
the alien’s underlying criminal offense,
a showing of extraordinary circumstances might still be insufficient
to warrant a favorable exercise of discretion under section 212(h)(2) of the
Act.
(e) Provisional unlawful presence waivers of inadmissibility. The provisions of
this paragraph (e) apply to certain
aliens who are pursuing consular immigrant visa processing.
(1) Jurisdiction. USCIS has exclusive
jurisdiction to grant a provisional unlawful presence waiver under this paragraph (e). An alien applying for a provisional unlawful presence waiver must
file with USCIS the form designated by
USCIS, with the fees prescribed in 8
CFR 106.2, and in accordance with the
form instructions.
(2) Provisional unlawful presence waiver; in general. (i) USCIS may adjudicate
applications for a provisional unlawful
presence waiver of inadmissibility
based on section 212(a)(9)(B)(v) of the
Act filed by eligible aliens described in
paragraph (e)(3) of this section. USCIS
will only approve such provisional unlawful presence waiver applications in
accordance with the conditions outlined in paragraph (e) of this section.
Consistent with section 212(a)(9)(B)(v)
of the Act, the decision whether to approve a provisional unlawful presence
waiver application is discretionary. A
pending or approved provisional unlawful presence waiver does not constitute

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8 CFR Ch. I (1–1–23 Edition)

a grant of a lawful immigration status
or a period of stay authorized by the
Secretary.
(ii) A pending or an approved provisional unlawful presence waiver does
not support the filing of any application for interim immigration benefits,
such as employment authorization or
an advance parole document. Any application for an advance parole document or employment authorization
that is submitted in connection with a
provisional unlawful presence waiver
application will be rejected.
(3) Eligible aliens. Except as provided
in paragraph (e)(4) of this section, an
alien may be eligible to apply for and
receive a provisional unlawful presence
waiver for the grounds of inadmissibility under section 212(a)(9)(B)(i)(I)
or (II) of the Act if he or she meets the
requirements in this paragraph. An
alien may be eligible to apply for and
receive a waiver if he or she:
(i) Is present in the United States at
the time of filing the application for a
provisional unlawful presence waiver;
(ii) Provides biometrics to USCIS at
a location in the United States designated by USCIS;
(iii) Upon departure, would be inadmissible
only
under
section
212(a)(9)(B)(i) of the Act at the time of
the immigrant visa interview;
(iv) Has a case pending with the Department of State, based on:
(A) An approved immigrant visa petition, for which the Department of
State immigrant visa processing fee
has been paid; or
(B) Selection by the Department of
State to participate in the Diversity
Visa Program under section 203(c) of
the Act for the fiscal year for which
the alien registered;
(v) Will depart from the United
States to obtain the immigrant visa;
and
(vi) Meets the requirements for a
waiver
provided
in
section
212(a)(9)(B)(v) of the Act.
(4) Ineligible aliens. Notwithstanding
paragraph (e)(3) of this section, an
alien is ineligible for a provisional unlawful presence waiver under paragraph (e) of this section if:
(i) The alien is under the age of 17;

(ii) The alien does not have a case
pending with the Department of State,
based on:
(A) An approved immigrant visa petition, for which the Department of
State immigrant visa processing fee
has been paid; or
(B) Selection by the Department of
State to participate in the Diversity
Visa program under section 203(c) of
the Act for the fiscal year for which
the alien registered;
(iii) The alien is in removal proceedings, in which no final order has
been entered, unless the removal proceedings are administratively closed
and have not been recalendared at the
time of filing the application for a provisional unlawful presence waiver;
(iv) The alien is subject to an administratively final order of removal, deportation, or exclusion under any provision of law (including an in absentia
order under section 240(b)(5) of the
Act), unless the alien has already filed
and USCIS has already granted, before
the alien applies for a provisional unlawful presence waiver under 8 CFR
212.7(e), an application for consent to
reapply for admission under section
212(a)(9)(A)(iii) of the Act and 8 CFR
212.2(j);
(v) CBP or ICE, after service of notice
under 8 CFR 241.8, has reinstated a
prior order of removal under section
241(a)(5) of the Act, either before the
filing of the provisional unlawful presence waiver application or while the
provisional unlawful presence waiver
application is pending; or
(vi) The alien has a pending application with USCIS for lawful permanent
resident status.
(5) Filing. (i) An alien must file an application for a provisional unlawful
presence waiver of the unlawful presence inadmissibility bars under section
212(a)(9)(B)(i)(I) or (II) of the Act on the
form designated by USCIS, in accordance with the form instructions, with
the fee prescribed in 8 CFR 106.2, and
with the evidence required by the form
instructions.
(ii) An application for a provisional
unlawful presence waiver will be rejected and the fee and package returned to the alien if the alien:

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§ 212.7

(A) Fails to pay the required filing
fee or correct filing fee for the provisional unlawful presence waiver application;
(B) Fails to sign the provisional unlawful presence waiver application;
(C) Fails to provide his or her family
name, domestic home address, and date
of birth;
(D) Is under the age of 17;
(E) Does not include evidence of:
(1) An approved immigrant visa petition;
(2) Selection by the Department of
State to participate in the Diversity
Visa Program under section 203(c) of
the Act for the fiscal year for which
the alien registered; or
(3) Eligibility as a derivative beneficiary of an approved immigrant visa
petition or of an alien selected for participation in the Diversity Visa Program as provided in this section and
outlined in section 203(d) of the Act.
(F) Fails to include documentation
evidencing:
(1) That the alien has paid the immigrant visa processing fee to the Department of State for the immigrant visa
application upon which the alien’s approved immigrant visa petition is
based; or
(2) In the case of a diversity immigrant, that the Department of State selected the alien to participate in the
Diversity Visa Program for the fiscal
year for which the alien registered.
(6) Biometrics. (i) All aliens who apply
for a provisional unlawful presence
waiver under this section will be required to provide biometrics in accordance with 8 CFR 103.16 and 103.17, as
specified on the form instructions.
(ii) Failure to appear for biometric services. If an alien fails to appear for a biometric services appointment or fails to
provide biometrics in the United States
as directed by USCIS, a provisional unlawful presence waiver application will
be considered abandoned and denied
under 8 CFR 103.2(b)(13). The alien may
not appeal or file a motion to reopen or
reconsider an abandonment denial
under 8 CFR 103.5.
(7) Burden and standard of proof. The
alien has the burden to establish, by a
preponderance of the evidence, eligibility for a provisional unlawful presence waiver as described in this para-

graph, and under section 212(a)(9)(B)(v)
of the Act, including that the alien
merits a favorable exercise of discretion.
(8) Adjudication. USCIS will adjudicate a provisional unlawful presence
waiver application in accordance with
this
paragraph
and
section
212(a)(9)(B)(v) of the Act. If USCIS
finds that the alien is not eligible for a
provisional unlawful presence waiver,
or if USCIS determines in its discretion
that a waiver is not warranted, USCIS
will deny the waiver application. Notwithstanding 8 CFR 103.2(b)(16), USCIS
may deny an application for a provisional unlawful presence waiver without prior issuance of a request for evidence or notice of intent to deny.
(9) Notice of decision. (i) USCIS will
notify the alien and the alien’s attorney of record or accredited representative of the decision in accordance with
8 CFR 103.2(b)(19). USCIS may notify
the Department of State of the denial
of an application for a provisional unlawful presence waiver. A denial is
without prejudice to the alien’s filing
another provisional unlawful presence
waiver application under this paragraph (e), provided the alien meets all
of the requirements in this part, including that the alien’s case must be
pending with the Department of State.
An alien also may elect to file a waiver
application under paragraph (a)(1) of
this section after departing the United
States, appearing for his or her immigrant visa interview at the U.S. Embassy or consulate abroad, and after
the Department of State determines
the alien’s admissibility and eligibility
for an immigrant visa.
(ii) Denial of an application for a provisional unlawful presence waiver is
not a final agency action for purposes
of section 10(c) of the Administrative
Procedure Act, 5 U.S.C. 704.
(10) Withdrawal of waiver applications.
An alien may withdraw his or her application for a provisional unlawful
presence waiver at any time before
USCIS makes a final decision. Once the
case is withdrawn, USCIS will close the
case and notify the alien and his or her
attorney or accredited representative.
The alien may file a new application
for a provisional unlawful presence

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8 CFR Ch. I (1–1–23 Edition)

waiver, in accordance with the form instructions and required fees, provided
that the alien meets all of the requirements included in this paragraph (e).
(11) Appeals and motions to reopen.
There is no administrative appeal from
a denial of a request for a provisional
unlawful presence waiver under this
section. The alien may not file, pursuant to 8 CFR 103.5, a motion to reopen
or reconsider a denial of a provisional
unlawful presence waiver application
under this section.
(12) Approval and conditions. A provisional unlawful presence waiver granted under this section:
(i) Does not take effect unless, and
until, the alien who applied for and obtained the provisional unlawful presence waiver:
(A) Departs from the United States;
(B) Appears for an immigrant visa
interview at a U.S. Embassy or consulate; and
(C) Is determined to be otherwise eligible for an immigrant visa by the Department of State in light of the approved provisional unlawful presence
waiver.
(ii) Waives, upon satisfaction of the
conditions described in paragraph
(e)(12)(i), the alien’s inadmissibility
under section 212(a)(9)(B) of the Act
only for purposes of the application for
an immigrant visa and admission to
the United States as an immigrant
based on the approved immigrant visa
petition upon which a provisional unlawful presence waiver application is
based or selection by the Department
of State to participate in the Diversity
Visa Program under section 203(c) of
the Act for the fiscal year for which
the alien registered, with such selection being the basis for the alien’s provisional unlawful presence waiver application;
(iii) Does not waive any ground of inadmissibility other than, upon satisfaction of the conditions described in
paragraph (e)(12)(i), the grounds of inadmissibility
under
section
212(a)(9)(B)(i)(I) or (II) of the Act.
(13) Validity. Until the provisional unlawful presence waiver takes full effect
as provided in paragraph (e)(12) of this
section, USCIS may reopen and reconsider its decision at any time. Once a
provisional unlawful presence waiver

takes full effect as defined in paragraph (e)(12) of this section, the period
of unlawful presence for which the provisional unlawful presence waiver is
granted is waived indefinitely, in accordance with and subject to paragraph
(a)(4) of this section.
(14) Automatic revocation. The approval of a provisional unlawful presence waiver is revoked automatically
if:
(i) The Department of State denies
the immigrant visa application after
completion of the immigrant visa
interview based on a finding that the
alien is ineligible to receive an immigrant visa for any reason other than inadmissibility
under
section
212(a)(9)(B)(i)(I) or (II) of the Act. This
automatic revocation does not prevent
the alien from applying for a waiver of
inadmissibility for unlawful presence
under section 212(a)(9)(B)(v) of the Act
and 8 CFR 212.7(a) or for any other relief from inadmissibility on any other
ground for which a waiver is available
and for which the alien may be eligible;
(ii) The immigrant visa petition approval associated with the provisional
unlawful presence waiver is at any
time revoked, withdrawn, or rendered
invalid but not otherwise reinstated for
humanitarian reasons or converted to a
widow or widower petition;
(iii) The immigrant visa registration
is terminated in accordance with section 203(g) of the Act, and has not been
reinstated in accordance with section
203(g) of the Act; or
(iv) The alien enters or attempts to
reenter the United States without inspection and admission or parole at
any time after the alien files the provisional unlawful presence waiver application and before the approval of the
provisional unlawful presence waiver
takes effect in accordance with paragraph (e)(12) of this section.
(Secs. 103, 203, 212 of the Immigration and
Nationality Act, as amended by secs. 4, 5, 18
of Pub. L. 97–116, 95 Stat. 1611, 1620, (8 U.S.C.
1103, 1153, 1182)
[29 FR 12584, Sept. 4, 1964]
EDITORIAL NOTE: For FEDERAL REGISTER citations affecting § 212.7, see the List of CFR
Sections Affected, which appears in the
Finding Aids section of the printed volume
and at www.govinfo.gov.

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