Nonimmigrant Visas Visitors: Business & Pleasure Border Crossing Card (BCC) Classes of Aliens Ineligible to Receive Visas Visa Waiver Program Visa Denials Frequently Asked Questions (FAQ) Student and Exchange Visitor Visas Foreign Student Visas Applying for a Foreign Student Visa The Interim Student and Exchange Authentication System New Legal Requirements for Foreign Students in U.S. Public Schools What Consuls Look For - Student Visas Exchange Visitors Waiver of the J Visa Two-Year Foreign Residence Requirement, 212(e) The Irish Peace Process Cultural and Training Program Act of 1998 (Walsh Visa Program) Employment Visas (Nonimmigrant) Temporary Workers Exchange Visitors "I" Visas for Representatives of Foreign Information Media Temporary Religious Workers TN Visas: Professionals Under NAFTA Treaty Traders & Treaty Investors Classes of Aliens Ineligible to Receive Visas Renewing Your Visa Revalidating Visas in the U.S. Applying for a visa at a U.S. embassy or consulate at a Canadian or Mexican border post Exclusion from Automatic Revalidation of a Nonimmigrant Visa Visitors - Business and Pleasure Generally, a citizen of a foreign country who wishes to enter the United States must first obtain a visa, either a nonimmigrant visa for temporary stay, or an immigrant visa for permanent residence. The "visitor" visa is a nonimmigrant visa for persons desiring to enter the United States temporarily for business (B-1) or for pleasure or medical treatment (B-2). Persons planning to travel to the U.S. for a different purpose such as students, temporary workers, crewmen, journalists, etc., must apply for a different visa in the appropriate category. The consular officer can provide additional information. Travelers from certain eligible countries may also be able to visit the U.S. without a visa on the Visa Waiver Pilot Program. (See later in this document for further details.) QUALIFYING FOR A VISA Applicants for visitor visas must show that they qualify under provisions of the Immigration and Nationality Act. The presumption in the law is that every visitor visa applicant is an intending immigrant. Therefore, applicants for visitor visas must overcome this presumption by demonstrating that: -- The purpose of their trip is to enter the U.S. for business, pleasure, or medical treatment; -- That they plan to remain for a specific, limited period; and -- That they have a residence outside the U.S. as well as other binding ties which will insure their return abroad at the end of the visit. VISA INELIGIBILITY/ WAIVER The nonimmigrant visa application Form DS-156 list classes of persons who are ineligible under U.S. law to receive visas. In some instances an applicant who is ineligible, but who is otherwise properly classifiable as a visitor, may apply for a waiver of ineligibility and be issued a visa if the waiver is approved. APPLYING FOR A VISITOR VISA Applicants for visitor visas should generally apply at the American Embassy or Consulate with jurisdiction over their place of permanent residence. Although visa applicants may apply at any U.S. consular office abroad, it may be more difficult to qualify for the visa outside the country of permanent residence. Required Documentation Each applicant for a visitor visa must pay a nonrefundable US $100 application fee and submit: 1) An application Form DS-156, completed and signed. Blank forms are available without charge at all U.S. consular offices; 2) A passport valid for travel to the United States and with a validity date at least six months beyond the applicant's intended period of stay in the United States. If more than one person is included in the passport, each person desiring a visa must make an application; 3) Two photographs 1 and 1/2 inches square (37x37 mm) for each applicant, showing full face, without head covering, against a light background. Optional Documentation Applicants must demonstrate that they are properly classifiable as visitors under U.S. law. Evidence which shows the purpose of the trip, intent to depart the United States, and arrangements made to cover the costs of the trip may be provided. It is impossible to specify the exact form the evidence should take since applicants' circumstances vary greatly. Persons traveling to the U.S. on business can present a letter from the U.S. business firm indicating the purpose of the trip, the bearer's intended length of stay and the firm's intent to defray travel costs. Persons traveling to the U.S. for pleasure may use letters from relatives or friends in the U.S. whom the applicant plans to visit or confirmation of participation in a planned tour. Persons traveling to the U.S. for medical treatment should have a statement from a doctor or institution concerning proposed medical treatment. Those applicants who do not have sufficient funds to support themselves while in the U.S. must present convincing evidence that an interested person will provide support. Visitors are not permitted to accept employment during their stay in the U.S. Depending on individual circumstances, applicants may provide other evidence substantiating the trip's purpose and specifying the nature of binding obligations, such as family ties or employment, which would compel their return abroad. ADDITIONAL INFORMATION A person whose passport contains a previously issued visitor visa should inquire about special expedited procedures available at most consular offices for issuance of a new visitor visa. Unless previously canceled, a visa is valid until its expiration date. Therefore, if the traveler has a valid U.S. visitor visa in an expired passport, he or she may use it along with a new valid passport for travel and admission to the United States. If there is a fee for issuance of the visa, it is equal as nearly as possible to the fee charged to United States citizens by the applicant's country of nationality. Applicants for visitor visas should not find it necessary to employ persons to assist them in preparing documents or securing access to the U.S. consular office. Attempting to obtain a visa by the willful misrepresentation of a material fact, or fraud, may result in the permanent refusal of a visa or denial of entry into the United States. If the consular officer should find it necessary to deny the issuance of a visitor visa, the applicant may apply again if there is new evidence to overcome the basis for the refusal. In the absence of new evidence, consular officers are not obliged to re-examine such cases. U.S. PORT OF ENTRY Applicants should be aware that a visa does not guarantee entry into the United States. The U.S. Immigration and Naturalization Service (INS) has authority to deny admission. Also, the period for which the bearer of a visitor visa is authorized to remain in the United States is determined by the INS, not the consular officer. At the port of entry, an INS official must authorize the traveler's admission to the U.S. At that time the INS Form I-94, Record of Arrival-Departure, which notes the length of stay permitted, is validated. Those visitors who wish to stay beyond the time indicated on their Form I-94 must contact the INS to request an application to extend status. The decision to grant or deny a request for extension of stay is made solely by the INS. VISA WAIVER PROGRAM Travelers coming to the U.S. for tourism or business for 90 days or less from qualified countries may be eligible to visit the U.S. without a visa. Currently, 28 countries participate in the Visa Waiver Program: Andorra, Australia, Austria, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, the Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, the United Kingdom and Uruguay. Visitors entering on the Visa Waiver Program cannot work or study while in the U.S. and cannot stay longer than 90 days or change their status to another category. FURTHER INQUIRIES Questions on visa application procedures and ineligibilities should be made to the American consular office abroad by the applicant. The biometric border crossing card (BCC) project is a joint effort of the Department of State and the Immigration and Naturalization Service (INS) to comply with the Section 104 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). The law requires that every Border Crossing Card (BCC) issued after April 1, 1998, contain a biometric identifier such as fingerprint, and be machine-readable. The law also mandated that all pre- April 1, 1998 BCC's expire on October 1, 1999. In recognition of the magnitude of replacing over five million existing cards, Congress extended the deadline to September 30, 2001. The new BCC is a laminated, credit card-style document with many security features and ten -year validity. Called a "laser visa," the card is both a BCC and a B1/B2 visitor's visa. All Mexican visitors to the U.S., whether traveling to the border region or beyond, receive a laser visa. The Consular Affairs Bureau undertook a number of initiatives to better manage the large number of replacement card applications. We opened a new consulate in Nogales and expanded the consulate in Nuevo Laredo. We also established USG contractor-Operated Temporary Processing Facilities (TPFs) along the border, Most co-located with existing consular offices, and a card facility in Tijuana that quickly sorts and returns the INS-produced cards to the twelve posts in Mexico processing BCC's. From April 1, 1998 through August 21, 2001, American Embassy and Consulates adjudicated over 4.8 million applications, approving slightly more than 4.0 million. Somewhat less than half are for replacement cards; the rest are for first time applicants. Responsibility · Border Biometrics Program is responsible for coordinating policy and providing operational guidance for the new biometric border crossing card project. Criteria for Issuance of Laser Visa · Laser visa applicants must meet the same eligibility standards as those for the B-1/B-2 visa and for the BCC formerly issued by INS. · Applicants must demonstrate that they have ties to Mexico that would compel them to return after a temporary stay in the United States. U.S. consular officers look for evidence of strong family, business, or social ties. Documents Required for a Laser Visa · Applicants replacing an old-style BCC do not need a passport in order to get a laser visa. · They need to present the old card and a recent photo identity card. · A passport issued within the past 12 years is acceptable, even if it is now expired. · In lieu of a passport, a voter registration card is the preferred identity document. · First time applicants and those renewing other types of visas need to present a valid Mexican passport as the primary document of citizenship and identity. (GOM requires citizens flying out of the country to have a valid passport.) · We were willing to accept the Mexican Certificate of Nationality, issued by SRE (the Mexican Foreign Ministry), but the Ministry decided that the Certificate was not intended for general issuance. Cost of the Laser Visa · Visa application fee is $100.00. · Mexican children under 15 years of age, fee of $13.00. The child must have at least one parent who holds a laser visa or who is applying for a BCC. Laser visas issued for the reduced fee expire on the child's 15th birthday. If the full fee is paid, the child receives a BCC valid for the full ten years. Validity of the Laser Visa · U.S. visas worldwide are valid for a maximum of ten years. Except in the case of children, who pay a reduced fee, laser visas are valid for ten years. BCC Procedures After September 30, 2001 Deadline · All BCCs issued before April 1, 1998, will expire on September 30, 2001. Congress did not pass legislation to extend the expiration date, therefore these older cards are no longer valid for entry into the United States. Effective October 1, 2001 · Holders of combination B1/B2/BCC visas will be permitted to enter with a valid passport, complete I-94 form and $6.00 I-94 fee. (The BCC portion will no longer be valid after September 30, 2001.) · All other holders of old BCCs will be not permitted entry. Further Inquiries Further information about the specific case status, please contact the American consular office in Mexico or the local INS. For general inquiries, you contact the Visa Office at 202 663-1225 or usvisa@state.gov. The following sections of the law are taken from the immigration and Nationality Act, 8 U.S.C. 1001, et. seq., as amended by Public Law 101-549 of November 29, 1990. Section 221 (g) of the Immigration and Nationality Act reads as follows: 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 o f the 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 under 212, or any other provision of law: Provided, That 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 other wise entitled to receive a visa, upon receipt of a notice by the consular officer from the Attorney General of 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. Section 212 (a) of the Immigration and Nationality Act reads as follows: Classes of Excludable Aliens - Except as otherwise provided in this Act, the following describes classes of excludable aliens who are ineligible to receive visas and who shall be exclude from admission into the United states. (1) HEALTH - RELATED GROUNDS.-- (A) IN GENERAL. -- Any Alien-- (i) who is determined (in accordance with regulations prescribed by the Secretary of Health and Human Services) to have a communicable disease of public health significance, (ii) who is determined (in accordance with regulations prescribed by the Secretary of Health and Human Services in consultation with to Attorney General)-- (I) to have a physical or mental disorder and behavior associated with the disorder that may pose, or has posed, a threat to the property, safety, or welfare of the alien or others, or (II) to have a physical or mental disorder and a history of behavior associated with the disorder which behavior has posed a threat to the property, safety, or welfare of the alien or others and which behavior is likely to recur or to lead to other harmful behavior or (iii) who is determined (in accordance with regulations prescribed by the Secretary of Health and Human Services) to be a drug abuser or addict, is excludable. (B) WAIVER AUTHORIZED.-- For provisions authorizing waiver of certain clauses of subparagraph (A), see subsection (g). (2) CRIMINAL AND RELATED GROUNDS.-- (A) CONVICTION OF CERTAIN CRIMES.-- (i) IN GENERAL.-- Except as provided in a clause (ii), any alien convicted of, or who admits having committed, or who admits acts which constitute the essential elements of-- (I) a crime involving moral turpitude (other than a purely political offense), or (II) a violation of (or a conspiracy to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), is excludable. (ii) EXCEPTION.-- clause (i)(I) shall not apply to an alien who committed only one crime if-- (I) the crime was committed when the alien was under 18 years of age and the crime was committed (and the alien released from any confinement to a prison or correctional institution imposed for the crime) more than 5 years before the date of application for visas or other documentation and the date of application for admission to the United States, or (II) the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed). (B) MULTIPLE CRIMINAL CONVICTIONS.-- Any alien convicted of 2 or more offenses (other than purely political offenses), regardless of whether the conviction was in a single trial or whether the offenses arose from a single scheme of misconduct and regardless of whether the offenses involved moral turpitude, for which the aggregate sentences to confinement actually imposed were 5 years or more is excludable. (D) PROSTITUTION AND COMMERCIALIZED VICE.-- Any alien who-- (i) is coming to the United States solely, principally, or incidentally to engage in prostitution, or has engaged in prostitution within 10 years of the date of application for a visa, entry, or adjustment of status, (ii) directly or indirectly procures or attempts to procure, or (within 10 years of the date of application for a visa, entry, or adjustment of status) procured or attempted to procure or to import, prostitutes or persons for the purpose of prostitution, or receives or (within such 10-year period) received, in whole or in part, the proceeds of prostitution, or (iii) is coming to the United States to engage in any other unlawful commercialized vice whether or not related to prostitution, is excludable. (E) CERTAIN ALIENS INVOLVED IN SERIOUS CRIMINAL ACTIVITY WHO HAVE ASSERTED IMMUNITY FROM PROSECUTION.--Any alien-- (i) who has committed in the United States at any time a serious criminal offense (as defined in section 101(h)), (ii) for whom immunity from criminal jurisdiction was exercised with respect to that offense, (iii) who as a consequence of the offense and exercise of immunity has departed from the United States, and (iv) who has not subsequently submitted fully to the jurisdiction of the court in the United States having jurisdiction with respect to that offense, is excludable. (F) WAIVER AUTHORIZED.-- For provisions authorizing waiver of certain subparagraphs of this paragraph, see subsection (h). (3) SECURITY AND RELATED GROUNDS.-- (A) IN GENERAL.-- Any alien who a consular officer or the Attorney General knows, or has reasonable ground to believe, seeks to enter the United States to engage solely, principally, or incidentally in-- (i) any activity to violate any law of the United States relating to espionage or sabotage or to violate or evade any law prohibiting the export from the United States of goods, technology, or sensitive information, (ii) any other unlawful activity, or (iii) any activity a purpose of which is the opposition to, or the control or overthrow of, the Government of the United States by force, violence, or other unlawful means, is excludable. (B) TERRORIST ACTIVITIES. -- (i) IN GENERAL.-- Any alien who-- (I) has engaged in terrorist activity, or (II) a consular officer of the Attorney General knows, or has reasonable ground to believe, is likely to engage after entry in any terrorist activity (as defined in clause (iii)), is excludable. An alien is an officer, official, representative, or spokesman of the Palestine Liberation Organization is considered, for purpose of this Act, to be engaged in a terrorist activity. (ii) TERRORIST ACTIVITY DEFINED.-- As used in this Act, the term 'terrorist activity' means any activity which is unlawful under the laws of the place where it is committed (or which, if committed in the United States, would be unlawful under the laws of the United States or any State) and which involves any to the following: (I) The hijacking or sabotaging of any conveyance (including aircraft, vessel, or vehicle). (II) The seizing or detaining, and threatening to kill, injure, or continue to detain, another individual in order to compel a third person(including a governmental organization) to do or abstain from doing any act as an explicit or implicit condition for the release of the individual seized or detained. (III) A violent attack upon an internationally protected person (as defined in section 1116 (b)(4) of title 18, United States Code) or upon the liberty of such a person. (IV) An assassination (V) The use of any-- (a) biological agent, chemical agent, or nuclear weapon or device, or (b) explosive or firearm (other than for mere personal monetary gain), with the intent to endanger, directly or indirectly, the safety of one or more individuals or to cause substantial damage to property. (VI) A threat, attempt, or conspiracy to do any of the foregoing. (iii) ENGAGE IN TERRORIST ACTIVITY DEFINED.-- As used in this Act, the term 'engage in terrorist activity' means to commit, in an individual capacity or as a member of an organization, an act which the actor knows or reasonably should know, afford material support to an individual organization or government in conducting a terrorist activity at any time, including any of the following acts; (I) The preparation or planning of a terrorist activity. (II) The gathering of information on potential targets for terrorist activity. (III) The Providing of any type of material support, including a safe house, transportation, communications, funds, false identification, weapons, explosives, of training, to any individual the actor knows or has reason to believe has committed or plans to commit a terrorist activity. (IV) The soliciting of funds or other things of value for terrorist activity or for any terrorist organization. (V) Tho solicitation of any individual for membership in a terrorist organization, terrorist government, or to engage in a terrorist activity. (C) FOREIGN POLICY.-- (i) IN GENERAL.-- An alien whose entry or proposed activities in the United States the Secretary of State has reasonable ground to believe would have potentially serious adverse foreign policy consequences for the United States is excludable. (ii) EXCEPTIONS FOR OFFICIALS.-- An alien who is an official of a foreign government or a purported government, or who is a candidate for election to a foreign government office during the period immediately preceding the election for that office, shall not be excludable or subject to restrictions or conditions on entry into the United States under clause (i) solely because of the alien's past, current, or expected beliefs, statements, or associations, if such belief, statements, or associations would be lawful within the United States. (iii) EXCEPTIONS FOR OTHER ALIENS.-- An alien, not described in clause (ii) shall not be excludable or subject to restrictions or conditions on entry into the United States under clause (i) because of the alien's past, current, or expected beliefs, statements, or associations, would be lawful within the United States, unless the Secretary of State personally determines that the alien's admission would compromise a compelling United States foreign policy interest (iv) NOTIFICATION OF DETERMINATIONS.-- If a determination is made under clause (iii) with respect to an alien, the Secretary of State must notify on a timely basis the chairman of the committees on the Judiciary and Foreign Affairs of the House of Representatives and of the Committees on the Judiciary and Foreign Relations of the Senate of the identity of the alien and the reasons for the determination. (D) IMMIGRANT MEMBERSHIP IN TOTALITARIAN PARTY.-- (i) IN GENERAL.-- Any immigrant who is or has been a member of or affiliated with the Communist or any other totalitarian party (or subdivision or affiliate thereof), domestic or foreign, is excludable. (ii) EXCEPTION FOR INVOLUNTARY MEMBERSHIP.-- clause (i) shall not apply to an alien because of membership or affiliation if the alien establishes to the satisfaction of the consular officer when applying for a visa (or to the satisfaction of the Attorney General when applying for admission) that the membership or affiliation is or was involuntary, or is or was solely when under 16 years of age, by operation of law, or for purposes of obtaining employment, food, rations, or other essentials of living whether necessary for such purposes. (iii) EXCEPTION FOR PAST MEMBERSHIP.-- Clause (i) shall not apply to an alien because of membership or affiliation if the alien establishes to the satisfaction of the consular officer when applying for a visa (or to the satisfaction of the Attorney General when applying for admission) that-- (I) the membership or affiliation terminated at least-- (a) 2 years before the date of such application, or (b) 5 years before the date of such application, in the case of an alien whose membership or affiliation was with the party controlling the government of a foreign state that is a totalitarian dictatorship as of such date, and (II) the alien is not a threat to the security of the United States. (iv) EXCEPTION FOR CLOSE FAMILY MEMBERS.-- The Attorney General may, in the Attorney General's discretion, waive the application of clause (i) in the case of an immigrant who is the parent, spouse, son, daughter, brother, or sister of a citizen of the United States or a spouse, son or daughter of an alien lawfully admitted for permanent residence for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest if the immigrant is not a threat to the security of the United States. (E) PARTICIPANTS IN NAZI PERSECUTIONS OR GENOCIDE.-- (i) PARTICIPATION IN NAZI PERSECUTIONS.-- Any alien who, during the period beginning on March 23, 1933, and ending on May 8, 1945, under the direction of, or in association with-- (I) the Nazi government of Germany (II) any government in any area occupied by the military forces of the Nazi government of Germany, (III) any government established with the assistance or cooperation of the Nazi government of Germany, or (IV) any government which was an ally of the Nazi government of Germany, or incited, assisted, or otherwise participated in the persecution of any person because of race, religion, national origin, or political opinion is excludable. (ii) PARTICIPATION IN GENOCIDE.-- Any alien who has engaged in conduct that is defined as genocide for purposes of the International Convention on the Prevention and Punishment of Genocide is excludable. (4) PUBLIC CHARGE.-- Any alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, likely to become a public charge is excludable. (5) LABOR CERTIFICATION AND QUALIFICATIONS FOR CERTAIN IMMIGRANTS. -- (A) LABOR CERTIFICATION.-- (I) IN GENERAL.-- Any alien who seeks to enter the United States for the purpose of performing skilled or unskilled labor is excludable, unless the Secretary of Labor has determined and certified to the Secretary of State and the Attorney General that-- (I) there are not sufficient workers who are able, willing, qualified (or equally qualified in the case of an alien described in clause (ii) and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such skilled or unskilled labor, and (II) the employment of such alien will not adversely affect the wages and working conditions in the United States similarly employed. (ii) CERTAIN ALIENS SUBJECT TO SPECTIAL RULE.-- For purposes of clause (i)(I), an alien described in this clause is an alien who-- (I) is a member of the teaching profession, or (II) has exceptional ability in the sciences or the arts. (B) UNQUALIFIED PHYSICIANS.-- An alien who is a graduate of a medical school not accredited by a body or bodies approved for the purpose by the secretary of Education (regardless of whether such school or medicine is in the United States) and who is coming to the United States principally to perform services as a member of the medical profession is excludable, unless the alien (i) has passed parts I and II of the National Board of Medical Examiners Examination (or an equivalent examination as determined by the Secretary of Health and Human Services) and (ii) is competent in oral and written English. For purposes of the previous sentence, an alien who is a graduate of a medical school shall be considered to have passed parts I and II of the National Board of Medical Examiners if the alien was fully and permanently licensed to practice medicine in a State on January 9, 1978, and was practicing medicine in a State on that date. (C) APPLICATION OF GROUNDS.-- The grounds for exclusion of aliens under subparagraph (A) and (B) shall apply to immigrants seeking admission or adjustment of status under paragraphs (2) or (3) of Section 203(b). (6) ILLEGAL ENTRANTS AND IMMIGRATION VIOLATORS.-- (A) ALIENS PREVIOUSLY DEPORTED.-- Any alien who has been excluded from admission and deported and who again seeks admission within one year of the date of such deportation is excludable, unless prior to the alien's re-embarkation at a place outside the United States or attempt to be admitted from foreign contiguous territory the Attorney General has consented to the alien's reapplying for admission. (B) CERTAIN ALIENS PREVIOUSLY REMOVED.-- Any alien who-- (i) has been arrested and deported, (ii) has fallen into distress and has been removed pursuant to this or any prior Act, (iii) has been removed as an alien enemy, or (iv) has been removed at Government expense in lieu of deportation pursuant to section 242(b), and (a) who seeks admission within 5 years of the date of such deportation or removal or (b) who seeks admission within 20 years in the case of an alien convicted of an aggravated felony, is excludable, unless before the date of the alien's embarkation or re-embarkation at a place outside the United states or attempted to be admitted from foreign contiguous territory the Attorney General has consented to the alien's applying or reapplying for admission. (C) MISREPRESENTATION-- (i) IN GENERAL-- Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or entry into the United States or other benefit provide under this Act is excludable. (ii) WAIVER AUTHORIZED.-- For provisions authorizing waiver of clause (i), see subsection (i). (D) STOWAWAYS.-- Any alien who is a stowaway is excludable. (E) SMUGGLERS.-- (i) Any 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 is excludable. (ii) SPECIAL RULE IN THE CASE OF FAMILY REUNIFICATION.-- Clause (i) shall not apply in the case of alien who is an eligible immigrant (as defined in section 301(b)(1) of the Immigration Act of 1990), was physically present in the United States on May 5, 1988, and is seeking admission as an immediate relative or under section 203(a)(2) (including under section 112 of the Immigration of 1990) or benefit under section 301(a) of the Immigration Act of 1990 if the alien, before may 5, 1988, has encouraged, induced, assisted, abetted, or aided only the alien's spouse, parent, son, or daughter (and no other individual) to enter the United States in violation of law. (iii) WAIVER AUTHORIZED.-- For provisions authorizing waiver of clause (i), see subsection (d)(11). (F) SUBJECT OF CIVIL PENALTY.-- An alien who is the subject of a final order for violation of section 247C is excludable. (7) DOCUMENTATION REQUIREMENTS.-- (A) IMMIGRATNS.-- (i) IN GENERAL.-- Except as otherwise specifically provided in this Act, any immigrant at the time of application for admission-- (I) who is not in possession of a valid immigrant visa, reentry permit, border crossing identification card, or other valid entry document required by this Act, and 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 Attorney General under Section 211(a), or (II) whose visa has been issued without compliance with the provisions of section 203, is excludable (ii) WAIVER AUTHORIZED.-- For provisions authorizing waiver of clause (i), see subsection (k). (B) NONIMMIGRANTS.-- (i) IN GENERAL.-- Any nonimmigrant who-- (I) is not in possession of a passport valid for a minimum of six months from the date of the expiration of the initial period of the alien's admission or contemplated initial period of stay authorizing the alien to return to the country from which the alien came or to proceed to and enter some other country during such period, or (II) is not in possession of a valid nonimmigrant visa or border crossing identification card at the time of application for admission, is excludable. (ii) GENERAL WAIVER AUTHORIZED.-- For provisions authorizing waiver of clause (i) see subsection (d)(4). (iii) GUAM VISA WAIVER.-- For provision authorizing waiver of clause (i) in the case of visitors to Guam, see subsection (I). (iv) VISA WAIVER PILOT PROGRAM.-- For authority to waive the requirements of clause (i) under a pilot program, see section 217. (8) INELIGIBLE FOR CITIZENSHIP.-- (A) IN GENERAL.-- Any immigrant who is permanently ineligible to citizenship is excludable. (B) DRAFT EVADERS.-- Any person who has departed from or who has remained outside the United States to avoid or evade training or service in emergency is excludable, except that this subparagraph shall not apply to an alien who at the time of such departure was a nonimmigrant and who is seeking to reenter the United States as a nonimmigrant. (9) MISCELLANEOUS.-- (A) PRACTICING POLYGAMIST.-- Any immigrant who is coming to the United States to practice polygamy is excludable. (B) GUARDIAN REQUIRED TO ACCOMPANY EXCLUDED ALIEN.-- Any alien accompanying another alien ordered to be excluded and deported and certified to be helpless from sickness or mental or physical disability or infancy pursuant to section 237(e), whose protection or guardianship is required by the alien ordered excluded and deported, is excludable. (C) INTERNATIONAL CHILD ABDUCTION.-- (i) IN GENERAL.-- Except as provided in clause (ii), any alien who, after entry of an order by a court in the United States granting custody to a person of a United States Citizen child who detains or retains the child, or custody of the child outside the United States from the person granted custody by that order. (ii) EXCEPTION.-- Clause (i) shall not apply so long as the child is located in a foreign state that is a party of the Hague Convention on the Civil Aspects of International Child Abduction. Section 212(e) of the Immigration and Nationality Act reads as follows: No person admitted under section 101(a)(15)(j) of this title 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 Government of the United States or by the government of the country of his nationality of his last residence, (ii) who at the time of admission or acquisition of status under section 101(a)(15)(j) of this title was a national or resident of a country which the the Director of the U.S. Information Agency pursuant to regulations proscribed 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, 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 sections 101(a)(15)(H), 101(a)(15)(L), of this title until it is established that such person has resided and been physically present in the country of his nationality or his last residence for an aggregate of at least two years following departure from the United States: Provided, That upon the favorable recommendation of the Director, pursuant to the request of an interested Government Agency, or of the Commissioner of Immigration and Naturalization after he 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 lawfully resident alien), or that the alien cannot return to the country of his nationality or last residence because he would be subject to persecution on account of race, religion, or political opinion, the Attorney General may waive the requirements of such two-year foreign residence abroad in the case of any alien whose admission to the United States is found by the Attorney General to be in the public interest: And provided further, the except in the case of an alien described in clause (iii), the Attorney General may, upon the favorable recommendation of the Director a statement in writing that it has no objection to such waiver in the case of such alien. WAIVER OF INELIGIBILITY Aliens who are ineligible for a visa under one of the classes enumerated above may be eligible for a waiver of ineligibility under one of the following provisions of the Act. Section 212(g) of the Immigration and Nationality Act, provider that: The Attorney General may waive the application of-- (1) subsection (a)(1)(A)(i) in the case of any alien who-- (A) is the spouse or the unmarried son or daughter, or the minor unmarried lawfully adopted child, or a United States citizen, or of an alien lawfully admitted for permanent residence, or of an alien who has been issued an immigrant visa, or (B) has a son or daughter who is a United States citizen, or of an alien lawfully admitted for permanent residence, or an alien who has been issued an immigrant visa, or (2) subsection (a)(1)(A)(ii) in the case of any alien , in accordance with such terms, conditions, and controls, if any, including the giving of bond, as the Attorney General, in his discretion after consultation with the Secretary of Health and Human Services, may by regulation prescribe. Section 121(h) of the Immigration and Nationality Act, provides that: The Attorney General may, in his discretion, waive the application of subparagraphs(A)(i)(I), (B), (D), and (E) of subsection (a)(2) and subparagraphs (A)(i)(II) of such subsection insofar as it relates to a single offense of simple possession of 30 grams or less of marijuana if-- (1)(A) in the case of any immigrant it is established to the satisfaction of the Attorney General that-- (i) the alien is excludable only under subparagraph (D)(i) or (D)(ii) of such section or the activities for which the alien is excludable occurred more than 15 years before the date of the alien's application for a visa, entry, or adjustment of status, (ii) the admission to the United States of such alien would not be contrary to the national welfare, safety, or security of the United States, and (iii) the alien has been rehabilitated; or (B) in the case of an immigrant who is the spouse, parent, son, or daughter of a citizen of the United States or an alien lawfully admitted for permanent residence if it is established to the satisfaction of the Attorney General that the alien's exclusion would result in extreme hardship to the United States citizen or lawful resident spouse, parent, son, or daughter of such alien; and (2) the Attorney General, in his discretion, and pursuant to such terms, conditions and procedures as he may by regulations prescribe, has consented to the alien's applying or reapplying for a visa, for admission to the United States, or adjustment of status. No waiver shall be provided under this subsection in the case of an alien who has been convicted of (or who has admitted committing acts that constitute) murder or criminal acts involving torture. Section 212(i) of the the Immigration and Nationality Act, provides that: The Attorney General may, in his discretion, waive application of clause (i) of subsection (a)(6)(C)-- (1) in the case of an immigrant who is the spouse, parent, or son or daughter of a United states citizen or of an immigrant lawfully admitted for permanent residence, or (2) if the fraud or misrepresentation occurred at least 10 years before the date of the immigrant's application for a visa, entry, or adjustment and it is established to the satisfaction of the Attorney General that the admission to the Unites States of such immigrant would not be contrary to the national welfare, safety, or security of the United States. Section 212(d)(11) of the Immigration and Nationality Act, provides that: The Attorney General may, in his discretion for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest, waive application of clause (i) of subsection(a)(6)(E) in the case of any alien lawfully admitted for permanent residence who temporarily proceeded abroad voluntary and not under an order or deportation, and who is otherwise admissible to the United States as a returning resident under section 211(b) and in the case of an alien seeking admission or adjustment of status as an immediate relative or immigrant under section 203(a) (other than paragraph (4) thereof) if the alien has encouraged, induced, assisted, abetted or aided only the alien's spouse, parent, son, or daughter (and no other individual) to enter the United States in violation of law. Section 212(d)(3) of the Immigration an Nationality Act, provides that: Except as provided in this subsection, an alien (A) who is applying for a nonimmigrant visa and is know or believed by the consular officer to be ineligible for such visa under one or more of the paragraphs enumerated in subsection (q) (other than paragraphs (3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C), or(3)(E) of such subsection), after approval by the Attorney General of a recommendation by the Secretary of State or by the consular officer that the alien be admitted temporarily despite the Secretary of State or by the consular officer that the alien be admitted into the United States temporarily as a nonimmigrant in the discretion of the Attorney General... The Attorney General shall prescribe conditions including exaction of such bonds as may be necessary to control and regulate the admission and return of excludable aliens applying for temporary admission under this paragraph. Section 212(c) of the Immigration and Nationality Act, provides that: Aliens lawfully admitted for permanent residence who temporarily proceed abroad voluntarily and not under an order of deportation, and who are returning to a lawful un-relinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General without regard to the provisions of subsection (a) (other than paragraphs (3) and (9)(C)). What is the Visa Waiver Program? The Visa Waiver Program (VWP) enables citizens of participating countries to travel to the U.S. for tourism or business for 90 days or less without obtaining a U.S. visa. The VWP is administered by the Attorney General in consultation with the Secretary of State. The Visa Waiver Program (VWP) was created by an act of Congress as a pilot program in 1986 and implemented in 1988. Congress passed legislation to make the program permanent in October 2000, and the President signed the legislation on October 30, 2000. Currently there are 28 participating countries in the VWP: Andorra, Austria, Australia, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, The Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, the United Kingdom and Uruguay. How can travelers enter the U.S. on VWP? To enter the U.S. on VWP, travelers from participating countries must: Have a valid passport issued by the participating country and be a citizen (not merely a resident) of that country. As of October 1, 2003, the passport presented at the U.S. port of entry must be a machine readable passport; Be seeking entry for 90 days or less as a temporary visitor; If entering by air or sea, have a round-trip transportation ticket issued on a carrier that has signed an agreement with the U.S. government to participate in the VWP, and arrive in the United States aboard such a carrier. Have proof of financial solvency and hold a completed and signed visa waiver arrival/departure form (I-94W), on which he/she has waived the right to a hearing of exclusion or deportation. These forms are available from participating carriers, from travel agents, and at land-border ports-of-entry. (Travelers should consult carriers to verify which ones are participating before making travel arrangements.) Entry at a land border crossing point from Canada or Mexico is permitted under the VWP. Travelers who apply for entry at a land border crossing point are not required to present round-trip transportation tickets or arrive at the border entry point aboard a carrier who has signed an agreement with the U.S. to participate in the VWP. All other VWP requirements apply to such travelers. How long may travelers stay in the U.S. on VWP? Visitors applying for entry under this program are allowed to remain 90 days. No extensions of stay can be granted, and VWP travelers cannot change their status. Consistent with regulations pertaining to B1/B2 temporary visitor visas, travelers coming under the VWP cannot work or study. Would a citizen of a VWP country ever need to apply for a visa? Certain travelers still need to apply for a visa, such as those who plan to work or study in the U.S., stay more than 90 days, or who might otherwise be ineligible for a visa. Travelers previously denied visas, or who have criminal records, or who believe they may be ineligible to enter the U.S. on the VWP, should contact the nearest U.S. Embassy or Consulate before attempting to travel on the VWP. How does a country qualify for VWP participation? Refusal rate: In order to qualify for VWP participation, the nonimmigrant visitor ("B-1/B-2" visa category) refusal rate for nationals of a country who have applied at a U.S. Embassy or Consulate in that country must average less than 3% for the previous fiscal year. Once a country meets the refusal rate criteria, a number of other factors must be evaluated before a decision on VWP nomination can be made: Reciprocity: VWP candidate countries must provide reciprocal visa-free travel for U.S. citizens. Passport security: A country must have a machine readable passport (MRP) program in place in order to qualify for VWP participation. In addition, VWP candidate countries must demonstrate that adequate safeguards against fraudulent use of their passports are in place, including proper storage of blank passports and sufficient screening of passport applicants. Consideration will also be given to the ease with which host country citizenship can be obtained. Political and economic stability: Countries under consideration for VWP participation must be sufficiently stable to ensure that conditions which could affect VWP qualifying criteria (such as overstay rates in the U.S.) are not likely to change dramatically in the future. Border controls: VWP candidate countries must demonstrate that effective border controls are in place for all territory under their control. Factors taken into consideration include the thoroughness and consistency of entry checks as well as the extent to which the country's territory is used as a transit point for alien smugglers. Law-enforcement cooperation: The degree to which host country law enforcement agencies cooperate with U.S. counterparts as well as international entities such as Interpol will be considered. The Attorney General, in consultation with the Secretary of State, must evaluate the nominee country's interest in enforcement of U.S. immigration laws, and the existence and effectiveness of extradition agreements with the U.S., including extradition of its own nationals who violate US laws. The Attorney General must submit a report to Congress on the country's qualification for designation that includes an explanation of a favorable determination. Security concerns: Any security concerns that could be raised by a country's admission into the VWP program will be considered. Is there a probationary program for VWP entry? No. The probationary status entry program, designed for countries with a refusal rate of less than 3.5 percent but more than 2 percent, was eliminated by the new immigration legislation signed into law in September 1996. Therefore, no more countries may be admitted in probationary status. How does the nomination process work? The nomination process is based on a 1997 protocol established between the Departments of State and Justice. Under this protocol, the State Department initiates the process by advising the Department of Justice of its intent to nominate a country for consideration for inclusion in the VWP. The Department of State may only nominate a country once it determines that each the first three qualifications listed above (including refusal rate below 3%, reciprocal treatment for American citizens, and machine readable passport program in place) have been met. If all three of these criteria have not been met, or if the Department of State believes that deficiencies in the other qualification areas are significant, the Department will not nominate a country. Once the Department of State has advised the Department of Justice of its intent to nominate a country, an interagency team reviews the nomination, focusing on the impact inclusion of the country in VWP would have on law enforcement, national security, and immigration control. If no clearly disqualifying objections are raised during this prenomination review, the Secretary of State submits a formal written nomination to the Attorney General. After a country is formally nominated, INS leads a site team of representatives from interested agencies to visit the nominated country. The team reviews the nominee country’s political, social, and economic condition; the security of its passport and national identity documents; its border controls, immigration and nationality laws, and law enforcement policies and practices; and other matters that nay be of law enforcement, immigration, or national security concern. Based on the prenomination review and site visit, the interagency working group submits a recommendation to the Attorney General, who then makes the ultimate decision on VWP participation. NOTE: Effective February 21, 2002, Argentina is no longer included in the visa waiver program. You can go to the Department of Justice web site for further information.