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9 FAM 201.2

Immigrant Travel Without a Visa and/or Passport

(CT:VISA-1083;   06-08-2020)
(Office of Origin: CA/VO/L/R)

9 fam 201.2-1  related statutory and regulatory AUTHORITIES

9 FAM 201.2-1(A)  Immigration and Nationality Act

(CT:VISA-1;   11-18-2015)

INA 210 (8 U.S.C.1160); INA 211 (8 U.S.C. 1181); INA 212(a)(7)(A) (8 U.S.C. 1182(a)(7)(A)); INA 222(b) (8 U.S.C. 1202(b)); INA 245A (8 U.S.C. 1225a).

9 FAM 201.2-1(B)  Code of Federal Regulations

(CT:VISA-1;   11-18-2015)

22 CFR 42.1; 22 CFR 42.2; 22 CFR 40.71; 8 CFR 211.1(b).

9 FAM 201.2-2  IV travel without a visa and/or passport – overview

(CT:VISA-1;   11-18-2015)

There are certain circumstances in which an immigrant may travel without a visa and/or passport, or in which these requirements may be waived.

9 fam 201.2-3  Immigrant Travel without a visa

(CT:VISA-1083;   06-08-2020)

An unexpired immigrant visa (IV), reentry permit, or other valid entry document is required of an immigrant under INA 212(a)(7) except as indicated below.

(1)  Waiver for Certain Alien Children Not Required to Obtain Visas: 

(a)  Child Born After the Issuance of Parent's Visa:  A child born after the issuance of a visa to an accompanying parent who will arrive in the United States with the parent and apply for admission during the period of validity of the visa issued to the parent is not required to obtain an immigrant visa.

(b)  Child Born to an LPR: A child born of a Lawful Permanent Resident alien mother during a temporary visit abroad is not required to obtain an immigrant visa if

(i)     seeking admission within 2 years of birth; and

(ii)    accompanied by either parent, who is applying for readmission upon first return after the birth of the child.  The accompanying parent must be found admissible for the accompanying child to be eligible for admission without an immigrant visa. 

      Note: In either instance the parent must present the child's birth certificate.

(c)  Requiring Reentry Document of Child’s Parent:  The provisions of 9 FAM 201.2-3 paragraph (3)(b) above apply only if the alien parent is in possession of a valid Form I-551, a valid reentry permit, refugee travel document (lawful permanent resident only), an SB-1 visa, or other appropriate documentation consistent with 8 CFR 211.1(a). With respect to 22 CFR 42.1(d), it is irrelevant whether the visa issued to the accompanying parent is an initial visa or a replacement visa.

(d)  Evidence of Parent-Child Relationship:  To facilitate the admission of children under the provisions of 9 FAM 201.2-3 paragraph (3)(a) and (b) above you should instruct parents to have with them documentary evidence of the parent-child relationship.

9 fam 201.2-4  Immigrant travel withOut a passport

(CT:VISA-1083;   06-08-2020)

The passport requirement of INA 222(b) does not apply to the following categories of immigrants:

(1)  Stateless Person and Accompanying Spouse and Unmarried Son(s) or Daughter(s):

(a)  In general, statelessness is a rare situation and an alien can usually be presumed to be a national of the country having sovereignty over his or her place of birth, particularly if the alien's parents were also nationals of that place.

(b)  If the applicant claims statelessness, the burden is on the applicant to establish that he or she did not acquire the nationality of his or her place of birth under the laws of that place and does not have any other nationality. As citizenship is often acquired through parents, you may also examine the nationality of the applicant's parents in those cases where nationality is unclear.

(c)  You must examine the facts and circumstances for each applicant to determine if the individual is appropriately categorized as stateless, including:

(i)     the individual's date and place of birth;

(ii)    the date and place of birth of the individual's parent(s);

(iii)    the nationality of the individual's parent(s);

(iv)    the nationality/citizenship laws in effect at the time of the individual's birth;

(v)    any subsequent nationality/citizenship laws that apply retroactively to the individual.

        Note: If, after taking into consideration these and any other relevant factors, you determine that the individual has no nationality or citizenship, you may appropriately find the individual is stateless, for the limited purpose of determining whether the individual is required to possess a passport.  

(d)  If you encounter difficulties in determining whether an applicant is stateless, or the nationality of an applicant who is not stateless, for the purposes of this subchapter, you may consult with country authorities that may have records showing the nationality of its residents as necessary to adjudicate a pending visa application, unless there is reason to believe that doing so would endanger the applicant.

(e)  An alien who is a refugee or an exile normally retains the nationality of the country he or she fled and would not be considered stateless.

(2National of a Communist-Controlled Country:

(a)  The passport requirement may be waived for aliens who are nationals of Communist or Communist-controlled countries who are unable to obtain a passport.

(b)  In the case of an alien who is applying in his or her home country, you may determine, prior to visa issuance, if the alien will be able to depart upon the issuance of a visa. If not, little positive benefit would be served by receipt of a visa, and the possibility exists that it could be harmful to the alien and/or to the relations between the United States and the host government to issue such visa without a passport. If the alien is able to obtain an exit permit or other travel documentation which will allow his legal departure from the country, there would then be no objection based on comity principles to the issuance of a visa.

9 FAM 201.2-5  Processing Individual Immigrant Passport Waiver Requests

(CT:VISA-943;   09-25-2019)

a. For IV applicants not in possession of a valid passport, you can issue an IV on a DS-232 for an immigrant within any of the categories listed in 22 CFR 42.2 (a through f) without concurrence from CBP.  An immigrant within any of those categories listed in 22 CFR 42.2 is not required to present a passport at the POE when first entering the United States.

b. An IV applicant unable to obtain a passport and not within any of the categories found in 22 CFR 42.2 (a through f) will require a joint waiver of the passport requirement from CA/VO and CBP as stated in 22 CFR 42.2(g).  Gather the information noted here before requesting approval.

ˇ         CA/VO review: Email your post liaison in CA/VO/F to request approval. CA/VO will provide specific instructions confirming approval, which will be contingent upon CBP concurrence.  

c.  The CCD case file should detail in the notes section who from the Department and CBP waived the passport requirement.  The foil itself will also be annotated (see 9 FAM 504.10-3(B)(3)).

9 FAM 201.2-6  Furnishing Information Concerning Waivers to Immigration Officers

(CT:VISA-785;   05-16-2019)

a. You must furnish the following information to CA/VO and CBP officers when requesting concurrence in waivers of passport and visa requirements in this IV DV Passport Waiver template:

(1)  Alien’s full name with all aliases;

(2)  Date and place of birth;

(3)  Nationality;

(4)  Flight itinerary including the date and port of expected arrival in the United States; please include the flight reservation as an attachment in the email if you have it.  (If the POE is undetermined, please submit a tentative itinerary with the tentative POE and travel itinerary.  CBP will not consider the passport waiver request without a POE as it is up to the POE to accept or reject the passport waiver request);

(5)  Immigrant classification;

(6)  Documents to be waived;

(7)  A brief summary of the of the emergent circumstances surrounding the case which must include information indicating that all of the requirements of the subparagraph of 22 CFR 42.2(g) under which the waiver is recommended have been met

(8)  Name, address, and telephone number of the person the alien intends to visit in the United States

b. Officers must notify the designated VO/F liaison with any itinerary changes.  If the applicant’s itinerary changes to a different POE a new waiver of passport request must be submitted.  CBP POE concurrence is granted by the Port Director at the POE, therefore a new request must be submitted.

 

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