\ slb \ SERVICE LAW BOOKS MENU \ Operating Instructions \ OI 212 Documentary requirements: Nonimmigrants; waivers; admission of certain inadmissible aliens; parole. \ OI 212.7 Sections 212(g), (h), and (i) of the Immigration and Nationality Act, as amended.
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OI 212.7 Sections 212(g), (h), and (i) of the Immigration and Nationality Act, as amended.
(a) Waiver of inadmissibility under section 212(h) or (i).
(1) Application filed abroad.
(i) Acceptance of application.
Form I-601 filed in conjunction with an application for a visa may be accepted only by a consular officer who has found the alien eligible for a visa except for a ground of excludability which may be waived by section 212(h) or (i) of the Act.
After acceptance, the consular officer will forward the Form I-601 for processing and adjudication to the appropriate office of this Service abroad (see OI 103.1(c)), together with the visa dossier and visa petition, if any. If the applicant has been in the United States after reaching age 14, the consul will obtain his fingerprints on an applicant card and have him complete Forms G-325 and forward these documents with the Form I-601 for use by the Service office abroad in requesting a check of the FBI Inve
stigation Division and Records Branch. Similar action will be taken on the principal relative when he is in the consular district.
Before forwarding the application to the Service office abroad, the consular officer will interview the applicant unless the applicant is in the United States. A memorandum report of the interview shall also be forwarded to the appropriate Service office abroad with the Form I-601.
When an alien requires permission to reapply after deportation, his application therefor will be forwarded by the consular officer together with Form I-601. If the application for permission to reapply is denied, the Form I-601 application shall be rejected on the ground that the alien is not ''otherwise admissible'' as required by section 212 (h) or (i) and the fee for filing this application refunded.
If, after receipt by a Service office, grounds of excludability other than those for which the waiver is sought are discovered (e.g., 212(a)(23), 212(a) (28)), the application and all relating documents should be returned to the consular officer for reconsideration. All pertinent information relative to the additional grounds of excludability should accompany the application when returned to the consular office. This procedure should also be followed in cases where additional adverse information is discover
ed concerning the grounds of excludability covered by the waiver application (e.g., criminal offenses in addition to those known to the consular officer).
During the consular interview, the information furnished on Form I-601 will be reviewed with the applicant. The applicant's places of residence in the United States shall be obtained. The interview shall include coverage of, but shall not be limited to, the following: names, sex, dates and places of birth, citizenship and paternity of the applicant's children and present residence, support arrangements and whether they will accompany the applicant to the United States, a history of the applicant's prior mar
riages, if any, present financial status and financial arrangements between applicant and qualifying relatives, the circumstances surrounding the crime or crimes, act or acts, or activity (including date of beginning and termination of such activity) on which excludability is based, and details concerning any alleged extenuating circumstances. The interview shall include the duration and extent of alleged reformation, the alleged hardship to the citizen or resident alien relative, plans if the applicant is
permitted to immigrate to the United States and plans if not permitted to immigrate. In prostitute cases, the periods of ''practice'' shall be ascertained, not just periods covered by arrest or conviction records. Inquiry will not be made into housekeeping arrangements between applicant and spouse prior to their marriage unless clearly pertinent.
When a consular officer accepts an application Form I-601 from an alien in the United States who is ineligible for adjustment of status under section 245, he shall determine whether the alien desires the interview to be held abroad or in the United States, the Service officer to whom Form I-601 has been transferred will request the Service office doing the stateside investigation to also do the interview. The results of such an interview covering the points set forth in the preceding paragraphs shall be tra
nsmitted to the appropriate officer of this Service abroad for his use in the adjudication of Form I-601, and it shall be made clear to the alien that he will be required to proceed abroad to obtain an immigrant visa.
If the principal relative is present in the consular district, he will also be interviewed. The interview shall include, as appropriate, complete biographical data, his knowledge of the details of the crimes or acts rendering the applicant excludable, and any extenuating circumstances with respect thereto, the date of termination of immoral conduct or tendencies, his prior marital history with particular reference to the names and addresses of prior spouses and children other than the applicant's, and their
support arrangement, financial circumstances, present occupation and his ability to support the applicant and other dependents. The interview shall also include information as to whether or not he is aware of the existence of the grounds of excludability and when he first learned of these grounds and as to the stability of the marriage. Comment should be made regarding his plans in the event the application is denied. If the relative is the applicant's spouse and has been in the Armed Forces since their ma
rriage, the nature of his discharge shall be ascertained; if he was not honorably discharged, his military record shall be reviewed. If the principal relative is currently in the Armed Forces, an interview may be waived if deemed appropriate.
If the applicant has resided in the United States after reaching age 14, the Service office abroad shall request a stateside investigation of the applicant on Form I-601A, unless in the discretion of the adjudicating officer, an investigation is deemed unnecessary. In such a case where an investigation is required, a memorandum shall be placed in the file by the adjudicating officer setting forth the specific facts or questions to be investigated. Where a stateside investigation is requested, a neighborhood
and good moral character investigation will not be conducted unless the reasons therefor are specifically articulated. Routine police record checks may be requested at the discretion of the adjudicating officer.
When deemed necessary by the Service officer abroad having jurisdiction over the application, a similar investigation shall be conducted concerning the principal relative.
If the application is approved, the order shall be entered on Form I-607. If the application is denied, a formal order shall be prepared, in triplicate, setting forth the decision and the reasons therefor.
When an order becomes final, the consular officer with whom the visa application was filed shall be notified on Form I-603 by the office abroad which processed the application.
The definition of ''marihuana'' contained in the Comprehensive Drug Abuse Prevention and Control Act of 1970, Sec. 102(15), 84 Stat. 1244, (21 U.S.C. 802(15)) will be used when deciding (h) waivers of section 212(a)(23) of the Act.
(2) Application filed in the United States.
An application for a waiver may be accepted by a Service office in the United States only when filed in conjunction with an application for adjustment of status under sections 245, 249, section 1, Act of November 2, 1966, or P.L. 95-145 (Act of October 28, 1977). The Service office will accomplish the interview and investigation, if required, and otherwise adjudicate the application in accordance with OI 212.7(a). No investigation will be made of an applicant for a section 212(i) waiver unless the circumsta
nces indicate an investigation is necessary. An investigation of a 212(h) applicant shall be at the discretion of the adjudicating officer as provided for in OI 212.7(a)(1)(iii).
(b) Waiver of inadmissibility under section 212(g).
In adjudicating an application for a waiver of excludability under section 212(g), the immigration officer shall determine whether the relationship prescribed in that section exists and whether all the conditions required by 8 CFR 212.7(b) have been met.
Since the United States Public Health Service has determined that an alien with Down's Syndrome who has a state of arrested mental development is classifiable as mentally retarded within the meaning of Section 212(a)(1) of the Act and has instructed medical examiners to issue a Class ''A'' certification under that section of the Act to an alien in that category, such an alien is eligible for a Section 212(g) waiver.
A prospective immigrant arriving with a Class ''A'' medical condition for which a Section 212(g) waiver has been granted, or who has a Class ''B'' condition (for tuberculosis, not active, or leprosy, noninfectious), will have a stamp reading ''Class A or B(T)'' appearing in the ''USPHS'' block of Form OF-155 (FS-511). Whenever such an alien has not been inspected by a Public Health Service Officer, the immigration inspector shall examine the accompanying medical report, compare it with the comments in the '
'USPHS'' block of the immigrant visa and attach it securely to the visa. Likewise, the immigration inspector shall examine the visa page of the passport of a nonimmigrant for the notation ''MED.'' In either of the above cases, if the cited medical notations appear, the inspector will take the following appropriate action:
A. At ports where full-time PHS inspectional personnel are assigned and are on duty refer to PHS secondary.
B. At other ports or when no PHS inspector is on duty:
1. Remove one copy of the OF-157 (formerly FS-398) from visa or passport;
2. Place the following information on the reverse of the OF-157:
*(a) Alien's intended address in the U.S.;
*(b) Sex and date of birth;
*(c) Port and date of entry;
*(d) ''A'' number of alien in case of immigrant or nonimmigrant, if indicated;
*(e) Manner of arrival;
(f) Name and address of specialist or facility to which alien will report in U.S. and date agreement signed (from review of I-601 or Part II of CDC 4.422-1, 2, 4 or 5);
(g) Name and address of alien's sponsor;
* Only items (a) through (e) need be recorded for aliens with a Class B condition (tuberculosis, not active, or leprosy, noninfectious).
3. Send OF-157 to quarantine station nearest alien's port of entry.
The PHS inspector will use the information on the reverse of the OF-157 to complete:
CDC 75.17 (formerly CDC 4.451) for Class A Tuberculosis waiver.
CDC 75.21 (formerly CDC 4.422-3) for Class A mental waiver.
CDC 75.18 (formerly CDC 4.447) for Class B Tuberculosis.
CDC 42.1 (formerly CDC 4.337) for Class B Leprosy.
When an immigrant is admitted pursuant to a section 212(g), (h), or (i) waiver, the admitting immigration officer shall ascertain whether the consular officer has checked the appropriate box in the block to the right of the admission symbol to so indicate. If the consular officer has failed to do so, the admitting immigration officer shall check the appropriate box. In an adjustment case, the notation ''Section 212(g), (h), or (i) waiver granted'' shall be made in the space above the date of the original re
commendation on Form I-181.
If a section 212(g), (h), or (i) waiver is revoked, the Director of the Visa Office, Department of State, shall be notified.