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9 FAM 201.2

Immigrant Travel Without a Visa and/or Passport

(CT:VISA-785;   05-16-2019)
(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-554;   04-02-2018)

The regulations of the Department of Homeland Security contained in 8 CFR 211.1(b) relating to waivers of documentary requirements for immigrants provide for admission of certain aliens without visas.  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)  LPRs:  A Lawful Permanent Resident (LPR) possessing a Form I-551, Permanent Resident Card and returning to an unrelinquished domicile in the United States may not require a visa.  See 9 FAM 202.2-7 LPR Travel Documents for information on LPR travel with a Form I-551, ADIT stamp, LPR boarding foil, I-327 Reentry Permit, I-571 Refugee Travel Document, Returning Resident immigrant visa or a USCIS-issued transportation letter.

(2)  Travelers with Other Documents:

(a)  Special Agricultural Workers:  Certain agricultural workers who adjusted status under INA 210, and remain under such status, may present Form I-688, Temporary Resident Card, in lieu of an IV if returning to an unrelinquished residence within one year after temporary absence abroad.

(b)  Temporary Residents Adjusted Under INA 245A:  Aliens granted temporary resident status under INA 245A, and remaining under such status, may present Form I-688, Temporary Resident Card, in lieu of an IV if returning to an unrelinquished residence within 30 days after absence abroad, provided that the aggregate of such absences does not exceed 90 days.

(3)  Certain Alien Children Not Required to Obtain Visas: 

(a)  The child born after the issuance of a visa to a parent, or a child under two years of age born of a Lawful Permanent Resident alien mother during a temporary visit abroad, is not required to have a visa if the child is:

(i)     Born subsequent to issuance of an IV to the accompanying parent within the validity of the parent’s immigrant visa; or

(ii)    Born during the lawful permanent resident mother’s temporary visit abroad provided that:

·         Admission is within 2 years of birth; and

·         Either accompanying parent is applying for readmission upon first return after the birth of the child.

(b)  Requiring Reentry Document of Child’s Parent:  The provisions of 9 FAM 201.2-3 paragraph (3)(a) 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), or an SB-1 visa. 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.

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

(4)  211(b) DHS Waiver at Port of Entry:  An immigrant returning to an unrelinquished residence in the United States who does not possess a valid immigrant visa (IV), Form I-551, a Permit to Reenter the United States, or a Refugee Travel Document may be granted a waiver under INA 211(b), if the Department of Homeland Security (DHS) district director of the port of entry (POE) is satisfied that there is good cause for failure to present the document. 

(5)  Parole:  In addition to the categories of aliens listed in 9 FAM 201.2-3 who are not required to obtain immigrant visas (IV), INA 212(d)(5)(A) provides authority to the Secretary of Homeland Security (DHS) to parole an alien who is applying for admission on a case by case basis into the United States for urgent humanitarian reasons or for significant public benefit.  See 9 FAM 202.3 for additional information on parole.

9 fam 201.2-4  Immigrant travel withOut a passport

(CT:VISA-364;   05-25-2017)

The passport requirement of INA 222(b) may be waived for the following categories of immigrants:

(1)  Lawful Permanent Residents:  A lawfully admitted permanent alien returning from a temporary visit abroad is only required to present a passport when applying in the alien’s country of nationality and a passport is required by that country for departure.

(2)  Certain Relatives of a U.S. Citizen or LPR:  The spouse, unmarried son or daughter or parent of a U.S. citizen or a Lawful Permanent Resident (LPR) is only required to present a passport when they are applying in the alien’s country of nationality and a passport is required by that country for departure.  See section 9 FAM 102.8-2(K) for interpretations of the terms “son” and “daughter.”

(3)  Orphan Adopted Abroad and Orphan Adopted in United States:  For children classified as “immediate relatives” by reason of INA 101(b)(1)(F), a distinction is made between an orphan adopted abroad and an orphan to be adopted in the United States. If the orphan has been adopted abroad, the parent-child relationship legally exists when the visa application is made and the orphan will, therefore not need to present a passport.  However, if the orphan is to be adopted in the United States after admission, such a relationship does not yet exist and the orphan is required to present a passport.  See section 9 FAM 502.3-3(B) for definition of “orphan.”

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

(a)  There are several ways an individual might end up stateless:

(i)     The individual may have been born in a disputed territory, such as the Gaza Strip;

(ii)    The individual may have renounced his or her original citizenship or lost such citizenship by operation of law and failed to acquire citizenship of another country;

(iii)    The laws of the individual's country of birth may not have conferred citizenship on the basis of place of birth and the individual's parents may have been unable to transmit citizenship under the law of their country(ies) of origin; or

(iv)   The individual may have been born in a former colony or territory and failed to take necessary steps to retain/acquire the nationality of the former controlling state or to acquire the nationality of the new state.

(b)  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.

(c)  In general, statelessness is a rare situation and an alien can usually be presumed to be a national of his or her country of birth, particularly if the alien's parents were also natives of that country. 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 country of birth under the laws of that country and do not have any other nationality. As citizenship is often acquired through parents, post may also examine the nationality of the applicant's parents in those cases where nationality is unclear. If post encounters difficulties in determining either which applicants are stateless, or the nationality of the applicants who are not stateless, post may also wish to consult with country authorities who may have records showing the nationality of its residents.

(5)  National of a Communist-Controlled Country:

(a)  The passport requirement may be waived for aliens that are nationals of Communist or Communist-controlled countries who are unable to obtain a passport or for aliens who are nationals of Communist or Communist-controlled countries but are currently not living in their country of nationally who are unwilling to apply for a passport because of the alien’s opposition to communism.

(b)  In the case of an alien who is applying in his or her home country, you must 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.

(6)  Alien Member of the U.S. Armed Forces:  See 9 FAM 202.2-7(A) paragraph e; and

(7)  Beneficiary of Individual Waivers.

9 FAM 201.2-5  Processing Individual Immigrant Passport Waiver Requests

(CT:VISA-493;   02-06-2018)

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 are 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.

·         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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