9 fam 302
(U) grounds of ineligibility

9 FAM 302.1 

(U) Ineligibility based on Inadequate documentation of qualification - INA 212(a)(5), INA 212(a)(7), INA 214(b), INA 221(g), and INA 222(g)

(CT:VISA-160;   08-19-2016)
(Office of Origin: CA/VO/L/R)

9 FAM 302.1-1  (U) Statutory and regulatory authority

9 FAM 302.1-1(A)  (U) Immigration and Nationality Act

(CT:VISA-160;   08-19-2016)

(U) INA 101(a)(15) (8 U.S.C. 1101(a)(15)); INA 101(a)(41) (8 U.S.C. 1101(a)(41)); INA 212(a)(5)(A) (8 U.S.C. 1182(a)(5)(A)); INA 212(a)(5)(B) (8 U.S.C. 1182(a)(5)(B)); INA 212(a)(5)(C) (8 U.S.C. 1182(a)(5)(C )); INA 212(a)(5)(D) (8 U.S.C. 1182(a)(5)(D)); INA 212(a)(7)(A) (8 U.S.C. 1182(a)(7)(A)); INA 212(a)(7)(B) (8 U.S.C. 1182(a)(7)(B)); INA 212(d)(3)(A) (8 U.S.C. 1182(d)(3)(A)); INA 212(k) (8 U.S.C. 1182(k)); INA 212(r) (8 U.S.C. 1182(r); INA 214(b) (8 U.S.C. 1184(b), INA 221(g) (8 U.S.C. 1201(g); INA 222(g) (8 U.S.C. 1202(g)); INA 291 (8 U.S.C. 1363).

9 FAM 302.1-1(B)  (U) Code of Federal Regulations

(CT:VISA-160;   08-19-2016)

(U) 8 CFR 205.2(c); 8 CFR 212.15(g)(2); 20 CFR 656.5; 20 CFR 656.15; 20 CFR 656.16; 20 CFR 656.17; 20 CFR 656.18; 20 CFR 656.20; 20 CFR 656.30; 22 CFR 40.6; 22 CFR 40.51; 22 CFR 40.52; 22 CFR 40.53; 22 CFR 40.71; 22 CFR 40.72; 22 CFR 40.201; 8 CFR 41.101

9 FAM 302.1-1(C)  (U) Public Laws

(CT:VISA-160;   08-19-2016)

(U) Immigration and Nationality Act Amendments of 1976, Public Law 94-571; Armed Forces Immigration Adjustment Act of 1991, Public Law 102-110; Omnibus Consolidated Appropriations Act, 1997, Public Law 104-208, sec. 343.

9 FAM 302.1-2  (U) Presumption of Immigrant Status - ina 214(b)

9 FAM 302.1-2(A)  (U) Grounds

(CT:VISA-160;   08-19-2016) 

(U) An alien (other than a H-1B, L, and V applicant) is presumed to be an immigrant until he or she establishes to your satisfaction that he or she is entitled to nonimmigrant status under INA 101(a)(15). 

9 FAM 302.1-2(B)  (U) Application

9 FAM 302.1-2(B)(1)  (U) In General

(CT:VISA-160;   08-19-2016)

(U) Refusals under INA 214(b) are the most common refusal in nonimmigrant visa (NIV) adjudications.  INA 214(b) applies only to nonimmigrant visa applicants.

9 FAM 302.1-2(B)(2)  (U) How Do I Apply INA 214(b)?

(CT:VISA-160;   08-19-2016)

(U) With limited exceptions, all visa applicants are presumed to be immigrants (and thus not eligible for a nonimmigrant visa (NIV)) unless and until they satisfy you that they qualify for one of the NIV categories defined in INA 101(a)(15).  INA 291 places the burden of proof on the applicant at all times, which means the applicant must convince you that he or she is entitled to the requested visa.  Otherwise, the alien must be considered to be an applicant for immigrant status and cannot receive an NIV.

9 FAM 302.1-2(B)(3)  (U) Refusals Under INA 214(b) Versus Inadmissibility

(CT:VISA-160;   08-19-2016)

a. (U) In General:  A refusal under INA 214(b) does not constitute a finding of permanent inadmissibility, in contrast to an INA 212(a)(6)(C)(i) refusal, for example, which would be a permanent ineligibility.  INA 214(b) serves as a basis for refusal of a visa to an alien who has not established entitlement to an NIV classification by proving that he or she falls within a definition of INA 101(a)(15).  An NIV applicant who is denied under INA 214(b) may be approvable for an IV or another class of NIV or may even reapply for the same visa category and establish eligibility to the satisfaction of the consular officer who adjudicates the new application.

b. (U) Applying Both INA 214(b) and INA 212(a)You may refuse a visa under either INA 214(b) or INA 212(a) or, if applicable, both INA 214(b) and INA 212(a).

9 FAM 302.1-2(B)(4)  (U) Standards for Applying

(CT:VISA-160;   08-19-2016)

a. (U) NIV Qualification Standards:  When adjudicating NIV applications, you must be careful to recognize that the standards for qualifying for an NIV are found in the relevant subsections of INA 101(a)(15) and corresponding regulations and FAM guidance, not in INA 214(b) itself.  INA 214(b) does not provide any independent standards for qualifying for an NIV.  The applicant's failure to convince you that he or she meets any one of the specific requirements of the applicable NIV category will result in an INA 214(b) denial. (See 9 FAM 401.1-3(E) for more information on INA 214(b) and immigrant intent).

b. (U) Example:  For example, failure to possess sufficient funds to cover educational expenses results in a 214(b) denial of a student visa.  Failure to make a substantial investment results in a 214(b) denial of a treaty investor visa.  And the failure to possess the intent not to abandon a foreign residence results in a 214(b) denial of a B visa.  In each of these cases, the visa is denied under 214(b) because the applicant has not met the requirements set out for that particular visa category.

c.  (U) Overcoming:  The 214(b) basis of refusal may be overcome if the applicant demonstrates to your satisfaction that he or she lawfully meets and will abide by all the requirements of the particular NIV classification.

9 FAM 302.1-2(B)(5)  (U) Not Applicable in All Categories

(CT:VISA-160;   08-19-2016)

(U) It is important to note that Congress expressly excluded H-1B, L, and V visas from the statutory presumption of immigrant intent contained in INA 214(b).  In adjudicating visa applications in these categories, you must carefully review FAM guidance and other statutory provisions, including INA 212(a) grounds of inadmissibility.

9 FAM 302.1-2(B)(6)  (U) More than Just Ties

(CT:VISA-160;   08-19-2016)

a. (U) INA 214(b) cannot be simplified to mean only that applicants have "ties" or must intend to return home.  A refusal under INA 214(b) means that the applicant has failed to qualify for NIV status.  The most common reason that an applicant fails to qualify is a failure to show the sufficient ties to his or her home country that are required for most NIV classifications.  However, while a failure to show sufficient ties is the most common reason for a INA 214(b) finding, there are other reasons that an applicant could fail to qualify for NIV status and thus be found inadmissible under INA 214(b).

b. (U) INA 214(b) requires the visa applicant to establish to the satisfaction of the consular officer that he or she is entitled to nonimmigrant status under INA 101(a)(15).  As stated above, this simply means that the NIV applicant must prove to you that he or she meets the standards required by the particular visa classification for which he or she is applying.  In other words, the applicant must make a credible showing to you that all activities in which the applicant is expected to engage while in the United States are consistent with the claimed nonimmigrant status.  Proper visa adjudication requires you to assess the credibility of the applicant and of the evidence he or she submits in support of the application.  INA 291 places the burden of proof at all times on the applicant.

c. (U) If you are not satisfied that the applicant meets the standards required by the particular visa classification for which he or she is applying, you must refuse the applicant under INA 214(b).  This is the case regardless of the applicant's financial situation or ties abroad and regardless of whether there is sufficient evidence to refuse the applicant under another section of the law (for example, INA 212(a)(2)(C), INA 212(a)(3), INA 212(a)(6)(C), or INA 212(a)(6)(E)).

9 FAM 302.1-2(C)  (U) Advisory Opinions

(CT:VISA-160;   08-19-2016)   

(U) An AO is not required for a potential INA 214(b) refusal; however, if you have a question about the interpretation or application of law or regulation, you may request guidance from CA/VO/L/A.

9 FAM 302.1-2(D)  (U) Waiver

9 FAM 302.1-2(D)(1)  Waivers for Immigrants

(CT:VISA-160;   08-19-2016)   

(U) INA Section 214(b) does not apply to immigrant visa applicants.

9 FAM 302.1-2(D)(2)  (U) Waivers for Nonimmigrants

(CT:VISA-160;   08-19-2016) 

(U) There is no waiver available.  An applicant may overcome a 214(b) refusal.  For more information on overcoming a refusal see 9 FAM 306.2-2.

9 FAM 302.1-2(E)  Unavailable

(CT:VISA-160;   08-19-2016)

Unavailable

9 FAM 302.1-3  (U) Documentation Requirements for Immigrant Visa Applicants - INA 212(a)(7)(A)

9 FAM 302.1-3(A)  (U) Grounds

(CT:VISA-160;   08-19-2016)

(U) To comply with INA 212(a)(7)(A), an immigrant must possess a valid, unexpired U.S. immigrant visa (IV) and valid, unexpired travel document at the time of admission into the United States.  In order to demonstrate that there are no legal impediments to obtaining an IV, applicants must submit police records, court or military records if applicable, and evidence of financial support.  You must also review results of applicants' medical exams, namechecks and special clearance results when evaluating applicants' eligibility for the IV.  If a specific document is unobtainable, you must require substitute documentation or secondary evidence.  

9 FAM 302.1-3(B)  (U) Application

(CT:VISA-160;   08-19-2016) 

a. (U) You may not issue a visa to the holder of an improperly issued travel document, obtained either by providing fraudulent biographical data or issued by other than a competent authority as described in 9 FAM 403.9-3(A)(1).  Likewise, you may not issue a visa to the holder of an expired passport unless the applicant is able to present to you collateral documentation, which together with the expired passport, meets the requirements of INA 101(a)(30) and INA 212(a)(7)(B)(i)(I).

b. (U) In addition to a valid travel document, immigrants require valid supporting documentation to demonstrate eligibility for a visa.  You must ensure that the immigrant visa application complies with the documentation requirements of INA 222(a) through (d).

9 FAM 302.1-3(C)  (U) Advisory Opinions

(CT:VISA-160;   08-19-2016)  

(U) An AO is not required for a potential INA 212(a)(7)(A) ineligibility; however, if you have a question about the interpretation or application of law or regulation, you may request an AO from CA/VO/L/A.

9 FAM 302.1-3(D)  (U) Waivers

9 FAM 302.1-3(D)(1)  (U) Waivers for Immigrants

(CT:VISA-160;   08-19-2016)  

(U) No waiver is available at the time of visa application. However, under INA 212(k), DHS has discretionary authority to admit an IV holder at the port of entry, despite this inadmissibility.

9 FAM 302.1-3(D)(2)  (U) Waivers for Nonimmigrants

(CT:VISA-160;   08-19-2016)

(U) INA Section 212(a)(7)(A) is not applicable to nonimmigrant visa applicants.

9 FAM 302.1-3(E)  Unavailable

(CT:VISA-160;   08-19-2016)

Unavailable

9 fam 302.1-4  (U) documentation requirements for Nonimmigrant visa applicants - INA 212(a)(7)(B)

9 FAM 302.1-4(A)  (U) Grounds

(CT:VISA-160;   08-19-2016)

(U) A nonimmigrant without a passport valid for a at least six months from the date of the expiration of the initial period of the individual's admission or without a valid nonimmigrant visa or border crossing card at the time of application for admission is inadmissible. 

9 FAM 302.1-4(B)  (U) Application

9 FAM 302.1-4(B)(1)  (U) Passports and Visas

(CT:VISA-160;   08-19-2016)

(U) In certain circumstances a nonimmigrant without a valid visa and/or passport may be admissible.  For waivers of and exemptions from documentary requirements, see 9 FAM 201.1.

9 FAM 302.1-4(B)(2)  (U) Passports with Less than Six Month Validity and Automatic Extensions

(CT:VISA-160;   08-19-2016)

(U) Some countries have agreements with the United States whereby their passports are recognized as valid for return to the country concerned for a period of six months beyond the expiration date specified in the passport.  The effect of these agreements is to extend the period of validity of the passport for six months beyond the expiration date appearing on the face of the document, for the purposes of INA 212(a)(7)(B)(i)(I).  For more information see 9 FAM 403.9.

9 FAM 302.1-4(C)  (U) Advisory Opinions

(CT:VISA-160;   08-19-2016)

(U) An AO is not required for a potential INA 212(a)(7)(B) ineligibility; however, if you have a question about the interpretation or application of law or regulation, you may request an AO from CA/VO/L/A.

9 FAM 302.1-4(D)  (U) Waiver

9 FAM 302.1-4(D)(1)  (U) Waivers for Immigrants

(CT:VISA-160;   08-19-2016) 

(U) INA 212(a)(7)(B) is not applicable to immigrant visa applicants.

9 FAM 302.1-4(D)(2)  (U) Waivers for Nonimmigrants

(CT:VISA-160;   08-19-2016)

(U) For more information the waiver or exemptions from passport and visa requirements please see 9 FAM 201.1 and 9 FAM 305.3-1(C)

9 FAM 302.1-4(E)  Unavailable

9 FAM 302.1-4(E)(1)  Unavailable

(CT:VISA-160;   08-19-2016)

Unavailable

9 FAM 302.1-4(E)(2)  Unavailable

(CT:VISA-160;   08-19-2016)

Unavailable

9 FAM 302.1-5  (U) Labor Certification Requirements - INA 212(a)(5)(A)

9 FAM 302.1-5(A)  (U) Grounds

(CT:VISA-160;   08-19-2016)

(U) Consular officers use INA Section 212(a)(5)(A) to designate the ineligibility of employment-based second and third preference category immigrant visa applicants whose intended employment has not been certified by the Department of Labor or who are clearly unqualified for their certified employment.  There are some exceptions for second preference applicants.  See 9 FAM 302.1-5(B)(2) below.

9 FAM 302.1-5(B)  (U) Application

9 FAM 302.1-5(B)(1)  (U) In General

(CT:VISA-160;   08-19-2016)

(U) The Department of Labor has responsibility for granting labor certifications for two categories of employment-based immigrants - preference groups 2 and 3.  Second preference includes immigrants who are members of the professions holding advanced degrees and immigrants of exceptional ability in the sciences, arts, or business.  Third preference includes professionals, skilled, and other unskilled workers.

9 FAM 302.1-5(B)(2)  (U) Labor Certification

(CT:VISA-160;   08-19-2016)

(U) In general, aliens in the second and third preferences must possess an individual labor certification, an application for Schedule A certification, or evidence that he or she qualifies for the Labor Market Information Pilot Program.  However, in the case of a second preference applicant, the Secretary of Homeland Security may waive the job offer requirement, and thus a labor certification, for aliens of exceptional ability in the sciences, arts, professions, or business and for certain alien physicians (see 9 FAM 502.4-3(E)) when it is deemed to be in the national interest.

9 FAM 302.1-5(B)(3)  (U) Obtaining Labor Certification

(CT:VISA-160;   08-19-2016)

a. (U) In General:  The Department of Labor attempts to minimize the operational impact of its statutory responsibilities through the use of “Schedules” for types of cases in which either a definite approval or a very probable disapproval will result, without having to undertake the individual analysis required in the great majority of cases. 

b. (U) Schedule A Certifications:

(1)  (U) The Department of Labor’s Schedule A (see 20 CFR 656.5) sets forth occupational and professional groups in which there is a nation-wide shortage of workers willing, able, qualified (or equally qualified in the case of aliens who are members of the teaching profession or who have exceptional ability in the sciences or the arts), and available and in which the employment of aliens will not, presumably, affect adversely the wages and working conditions of workers in the United States similarly employed.

(2)  (U) An employer for an alien in an occupation which qualifies for Schedule A may file an application for certification with the appropriate Department of Homeland Security (DHS) office.  Schedule A, as amended as a result of the Immigration Act of 1990, lists two such occupational groups as follows:

(a) (U) Group I - Physical Therapists and Nurses; and

(b)  (U) Group II - Aliens of Exceptional Ability in Sciences or Arts.

(c)  (U) Because the Immigration Act of 1990 requires all applicants for employment-based classification to be the beneficiary of a petition filed with DHS, you no longer have responsibility for determining whether an alien is within one of these occupational groups. You must refer aliens who may qualify under Schedule A to the appropriate DHS office.

c.  (U) Individual Job Offer Certifications:  An employer who wishes to file a labor certification for an alien who does not qualify for Schedule A certification must file, signed by hand and in duplicate, a Department of Labor Application for Alien Employment Certification form and any attachments required with the local Employment Service office (see 20 CFR 656.17 or 20 CFR 656.18) serving the area where the alien proposes to be employed. 

d. (U) Schedule B:

(1)  (U) In General:  Certification under INA 212(a)(5)(A) will not ordinarily be granted for aliens coming to engage in occupations listed on Schedule B.  Schedule B (see 9 FAM 302.1-5(B)(3) paragraph d(5)) lists categories of employment in which the Department of Labor has found that generally there is no shortage of workers in the United States.  If an employer wishes to employ an alien whose occupation is on Schedule B, the employer should petition the regional certifying officer for the geographic area in which the job opportunity is located for a Schedule B waiver. 

(2)  (U) Assumptions:  If a labor certification is received at post for an alien who is seeking an occupation listed on Schedule B, you should assume that the certification by the Department of Labor is correct. 

(3)  (U) Sheepherder Certification:  Sheepherders are not considered to be included in the category of “Laborers, Farm” under Schedule B for whom certification will not ordinarily be granted.  An employer may apply for a labor certification to employ the alien (who has been employed legally as a nonimmigrant sheepherder in the United States for at least 33 of the preceding 36 months) as a sheepherder by filing a Form ETA-9089, Application for Permanent Employment Certification, directly with DHS, not with an office of the Department of Labor.  (See 20 CFR 656.16.) 

(4)  (U) Certifications for Household Domestic Workers:  Household domestic workers with less than one year of paid experience are listed under Schedule B as non-certifiable because there is generally no shortage of such workers in the United States.  However, employers who believe that domestic employees are in short supply in a particular area may apply for a Schedule B waiver provided for by the Department of Labor regulations which would allow an application to be processed much like any other. 

(5)  (U) Schedule B Occupational Titles and Definitions:  The Department of Labor identifies these occupations as Schedule B:

(a) (U) Assemblers:  Perform one or more repetitive tasks to assemble components and subassemblies using hand or power tools to mass produce a variety of components, products, or equipment. They perform such activities as riveting, drilling, filing, bolting, soldering, spot welding, cementing, gluing, cutting, and fitting.  They may use clamps or other work aids to hold parts during assembly, inspect or test components, or tend previously set-up or automatic machines.

(b)  (U) Attendants, parking lot:  Park automobiles for customers in parking lots or garages and may collect fees based on time span or parking.

(c)  (U) Attendants, service workers (such as personal service attendants, amusement and recreation service attendants):  Perform a variety of routine tasks attending to the personal needs of customers at such places as amusement parks, bath houses, clothing checkrooms, and dressing rooms; including such tasks as taking and issuing tickets, checking and issuing clothing and supplies, cleaning premises and equipment, answering inquiries, checking lists, and maintaining simple records.

(d)  (U) Automobile service station attendants:  Service automotive vehicles with fuel, lubricants, and automotive accessories at drive-in service facilities; may also compute charges and collect fees from customers.

(e) (U) Bartenders:  Prepare, mix and dispense alcoholic beverages for consumption by bar customers, and compute and collect charges for drinks.

(f)   (U) Bookkeepers II:  Keep records of one facet of an establishment's financial transactions by maintaining one set of books; specialize in such areas as accounts-payable, accounts-receivable, or interest accrued rather than a complete set of records.

(g) (U) Caretakers:  Perform a combination of duties to keep a private home clean and in good condition such as cleaning and dusting furniture and furnishings, hallways, and lavatories; beating, vacuuming, and scrubbing rugs; washing windows, waxing and polishing floors; removing and hanging draperies; cleaning and oiling furnaces and other equipment; repairing mechanical and electrical appliances; and painting.

(h)  (U) Cashiers:  Receive payments made by customers for goods or services, make change, give receipts, operate cash registers, balance cash accounts, prepare bank deposits and perform other related duties.

(i)   (U) Charworkers and Cleaners:  Keep the premises of commercial establishments, office buildings, or apartment houses in clean and orderly condition by performing, according to a set routine, such tasks as mopping and sweeping floors, dusting and polishing furniture and fixtures, and vacuuming rugs.

(j)   (U) Chauffeurs and Taxicab Drivers:  Drive automobiles to convey passengers according to the passengers' instructions.

(k) (U) Cleaners, hotel and motel:  Clean hotel rooms and halls, sweep and mop floors, dust furniture, empty wastebaskets, and make beds.

(l)   (U) Clerks, general:  Perform a variety of routine clerical tasks not requiring knowledge of systems or procedures such as copying and posting data, proofreading records or forms, counting, weighing, or measuring material, routing correspondence, answering telephones, conveying messages, and running errands.

(m) (U) Clerks, hotel:  Perform a variety of routine tasks to serve hotel guests such as registering guests, dispensing keys, distributing mail, collecting payments, and adjusting complaints.

(n)  (U) Clerks and Checkers, grocery stores:  Itemize, total, and receive payments for purchases in grocery stores, usually using cash registers; often assist customers in locating items, stock shelves, and keep stock-control and sales transaction records.

(o)  (U) Clerk Typists:  Perform general clerical work which, for the majority of duties, requires the use of typewriters; perform such activities as typing reports, bills, application forms, shipping tickets, and other matters from clerical records, filing records and reports, sorting and distributing mail, answering phones and similar duties.

(p)  (U) Cooks, short order:  Prepare and cook to order all kinds of short-preparation time foods; may perform such activities as carving meats, filling orders from a steamtable, preparing sandwiches, salads and beverages, and serving meals over a counter.

(q)  (U) Counter and Fountain Workers:  Serve food to patrons at lunchroom counters, cafeterias, soda fountains, or similar public eating places; take orders from customers and frequently prepare simple items, such as dessert dishes; itemize and total checks; receive payment and make change; clean work areas and equipment.

(r)   (U) Dining Room Attendants:  Facilitate food service in eating places by performing such tasks as removing dirty dishes, replenishing linen and silver supplies, serving water and butter to patrons, and cleaning and polishing equipment.

(s)  (U) Electric Truck Operators:  Drive gasoline or electric-powered industrial trucks or tractors equipped with forklift, elevating platform, or trailer hitch to move and stack equipment and materials in a warehouse, storage yard, or factory.

(t)   (U) Elevator Operators:  Operate elevators to transport passengers and freight between building floors.

(u)  (U) Floorworkers:  Perform a variety of routine tasks in support of other workers in and around such work sites as factory floors and service areas, frequently at the beck and call of others; perform such tasks as cleaning floors, materials and equipment, distributing materials and tools to workers, running errands, delivering messages, emptying containers, and removing materials from work areas to storage or shipping areas.

(v) (U) Groundskeepers:  Maintain grounds of industrial, commercial, or public property in good condition by performing such tasks as cutting lawns, trimming hedges, pruning trees, repairing fences, planting flowers, and shoveling snow.

(w)  (U) Guards:  Guard and patrol premises of industrial or business establishments or similar types of property to prevent theft and other crimes and prevent possible injury to others.

(x) (U) Helpers, any industry:  Perform a variety of duties to assist other workers who are usually of a higher level of competency of expertness by furnishing such workers with materials, tools, and supplies, cleaning work areas, machines and equipment, feeding or offbearing machines, and/or holding materials or tools.

(y) (U) Hotel Cleaners:  Perform routine tasks to keep hotel premises neat and clean such as cleaning rugs, washing walls, ceilings and windows, moving furniture, mopping and waxing floors, and polishing metalwork.

(z)  (U) Household Domestic Service Workers:  Perform a variety of tasks in private households, such as cleaning, dusting, washing, ironing, making beds, maintaining clothes, marketing, cooking, serving food, and caring for children or disabled persons.  This definition, however, applies only to workers who have had less than one year of documented full-time paid experience in the tasks to be performed, working on a live-in or live-out basis in private households or in public or private institutions or establishments where the worker has performed tasks equivalent to tasks normally associated with the maintenance of a private household.  This definition does not include household workers who primarily provide health or instructional services.

(aa) (U) Housekeepers:  Supervise workers engaged in maintaining interiors of commercial residential buildings in a clean and orderly fashion, assign duties to cleaners (hotel and motel), charworkers, and hotel cleaners, inspect finished work, and maintain supplies of equipment and materials.

(bb) (U) Janitors:  Keep hotels, office buildings, apartment houses or similar buildings in clean and orderly condition and tend furnaces and boilers to provide heat and hot water; perform such tasks as sweeping and mopping floors, emptying trash containers, and doing minor painting and plumbing repairs; often maintain their residence at their places of work.

(cc) (U) Key Punch Operators:  Using machines similar in action to typewriters, punch holes in cards in such a position that each hole can be identified as representing a specific item of information.  These punched cards may be used with electronic computers or tabulating machines.

(dd) (U) Kitchen Workers:  Perform routine tasks in the kitchens of restaurants.  Their primary responsibility is to maintain work areas and equipment in a clean and orderly fashion by performing such tasks as mopping floors, removing trash, washing pots and pans, transferring supplies and equipment, and washing and peeling vegetables.

(ee) (U) Laborers, common:  Perform routine tasks upon instructions and according to set routine, in an industrial, construction or manufacturing environment such as loading and moving equipment and supplies, cleaning work areas, and distributing tools.

(ff)  (U) Laborers, farm:  Plant, cultivate, and harvest farm products, following the instructions of supervisors, often working as members of a team. Their typical tasks are watering and feeding livestock, picking fruit and vegetables, and cleaning storage areas and equipment.

(gg) (U) Laborers, mine:  Perform routine tasks in underground and surface mines, pits, or quarries, or at tipples, mills, or preparation plants such as cleaning work areas, shoveling coal onto conveyors, pushing mine cars from working places to haulage roads, and loading or sorting material onto wheelbarrows.

(hh) (U) Loopers and Toppers: 

(i)     Tend machines that shear nap, loose threads, and knots from cloth surfaces to give uniform finish and texture.

(ii)    Operate looping machines to close openings in the toes of seamless hose or join knitted garment parts.

(iii)    Loop stitches or ribbed garment parts on the points of transfer bars to facilitate the transfer of garment parts to the needles of knitting machines.

(ii)  (U) Material Handlers:  Load, unload, and convey materials within or near plants, yards, or worksites under specific instructions.

(jj) (U) Nurses' Aides and Orderlies:  Assist in the care of hospital patients by performing such activities as bathing, dressing and undressing patients and giving alcohol rubs, serving and collecting food trays, cleaning and shaving hair from skin areas of operative cases, lifting patients onto and from beds, transporting patients to treatment units, changing bed linens, running errands and directing visitors.

(kk) (U) Packers, Markers, Bottlers and Related:  Pack products into containers, such as cartons or crates, mark identifying information on articles, insure that filled bottles are properly sealed and marked, often working in teams on or at end of assembly lines.

(ll)  (U) Porters:

(i)     (U) Carry baggage by hand or handtruck for airline, railroad or bus passengers, and perform related personal services in and around public transportation environments. 

(ii)    (U) Keep building premises, working areas in production departments of industrial organizations, or similar sites in clean and orderly condition.

(mm) (U) Receptionists:  Receive clients or customers coming into establishments, ascertain their wants, and direct them accordingly; perform such activities as arranging appointments, directing callers to their destinations, recording names, times, nature of business and persons seen and answering phones.

(nn) (U) Sailors and Deck Hands:  Stand deck watches and perform a variety of tasks to preserve painted surfaces of ships and to maintain lines, running gear, and cargo handling gear in safe operating condition; perform such tasks as mopping decks, chipping rust, painting chipped areas and splicing rope.

(oo) (U) Sales Clerks, general:  Receive payment for merchandise in retail establishments, wrap or bag merchandise, and keep shelves stocked.

(pp) (U) Sewing Machine Operators and Handstitchers

(i)     (U) Operate single-or multiple-needle sewing machines to join parts in the manufacture of such products as awnings, carpets, and gloves; specialize in one type of sewing machine limited to joining operations;

(ii)    (U) Join and reinforce parts of articles such as garments and curtains, sew button-holes and attach fasteners to such articles, or sew decorative trimmings on such articles, using needles and threads.

(qq) (U) Stock Room and Warehouse Workers:  Receive, store, ship, and distribute materials, tools, equipment, and products within establishments as directed by others.

(rr) (U) Streetcar and Bus Conductors:  Collect fares or tickets from passengers, issue transfers, open and close doors, announce stops, answer questions, and signal operators to start or stop.

(ss) (U) Telephone Operators:  Operate telephone switchboards to relay incoming and internal calls to phones in an establishment, and make connections with external lines for outgoing calls; often take messages, supply information and keep records of calls and charges; often are involved primarily in establishing, or aiding telephone users in establishing, local or long distance telephone connections.

(tt)  (U) Truck Drivers and Tractor Drivers:

(i)     (U) Drive trucks to transport materials, merchandise, equipment or people to and from specified destinations, such as plants, railroad stations, and offices. 

(ii)    (U) Drive tractors to move materials, draw implements, pull out objects imbedded in the ground, or pull cables of winches to raise, lower, or load heavy materials or equipment.

(uu) (U) Typists (lesser skilled):  Type straight-copy material, such as letters, reports, stencils, and addresses, from drafts or corrected copies.  They are not required to prepare materials involving the understanding of complicated technical terminology, the arrangement and setting of complex tabular detail or similar items.  Their typing speed in English does not exceed 52 words per minute on a manual typewriter and/or 60 words per minute on an electric typewriter and their error rate is 12 or more errors per 5 minute typing period on representative business correspondence.

(vv) (U) Ushers, Recreation and Amusement:  Assist patrons at entertainment events to find seats, search for lost articles and locate facilities.

(ww) (U) Yard Workers:  Maintain the grounds of private residences in good order by performing such tasks as mowing and watering lawns, planting flowers and shrubs, and repairing and painting fences.  They work on the instructions of private employers.

9 FAM 302.1-5(B)(4)  (U) Approved Labor Certifications

(CT:VISA-160;   08-19-2016)

a. (U) Validity of Approved Labor Certifications:

(1)  (U) Department of Labor regulations (20 CFR 656.30(a)) provide that all labor certifications, unless invalidated by a DHS or consular officer upon a determination of fraud or willful misrepresentation, are valid for an indefinite period and do not require re-certification.  (See 9 FAM 302.1-5(B)(10) below for pertinent procedures.)

(2)  (U) If the employer has withdrawn the offer of employment or the alien has decided not to accept the employment offered (see 9 FAM 302.1-5(B)(4) paragraph b below); or if the alien’s registration was terminated because the alien failed to apply for a visa within one year of notification of the availability of a visa (see INA 203(g) you must return the petition to the approving office of DHS under cover of a memorandum explaining why the petition is being returned.

b. (U) Limitations on Labor Certifications:

(1)  (U) Cases Involving Individual Job Offers:  In all cases involving individual job offer certification, the alien or the alien’s employer may act at any time to terminate the validity of the certification.  If the employer withdraws the offer of employment or if the alien decides not to accept the employment, the validity of the certification is terminated.  Such action could occur at any time after the certification is issued.  In all cases, a job offer certification is valid only for the particular job, and the geographic location set forth by the prospective employer in Form ETA-9089, Application for Permanent Employment Certification, or Form ETA-750, Application for Alien Employment Certification.

(2)  (U) Cases Involving Schedule A Certifications or Sheepherders:  A labor certification for a Schedule A occupation or sheepherders is valid only for the occupation set forth on the Form ETA-750, Application for Alien Employment Certification, or the Form ETA-9089, Application for Permanent Employment Certification, and only for the alien named on the original application unless a substitution was approved prior to July 16, 2007.  The certification is valid throughout the United States unless the certification contains a geographic limitation. 

(3)  (U) Limitations on Pre-1977 Certifications:  Public Law 94-571 contains a savings clause for aliens who filed for third preference status prior to January 1, 1977, regardless of when their application was finally approved.  Public Law 102-110 provided for the up-grading of former third preference applicants to employment-based second preference.  Thus such aliens are exempt from the necessity of having a job offer in order to retain their eligibility for an immigrant visa under INA 203(b)(2). 

c.  (U) Verifying Individual Job Offer Cases :

(1)  (U) Alien on Arrival Destined to Certified Employment:  In order to be admissible under INA 212(a)(5)(A):

(a)  (U) An alien for whom an individual offer of employment has been certified must still be destined to that specific employment when admission is sought at a port of entry (POE);

(b)  (U) In order to ensure that the alien is aware that admissibility is so conditioned, you must, when issuing immigrant visas to aliens with certified individual employment offers, require the alien to read and sign a statement and attach a copy of the following statement to the immigrant visa (IV).

STATEMENT TO BE SIGNED BEFORE CONSULAR OFFICER

Prior to Visa Issuance, by Immigrant Whose Application for Labor Certification Includes Job Offer on Form ETA 9089 or ETA-750, Part A “Offer of Employment”

I am aware that my eligibility for an immigrant visa and for admission to the United States is based upon the fact that I have been offered a job by the employer who executed the job offer and/or visa petition in my behalf, and also upon my intention to enter into his/her employ.  To the best of my knowledge and belief the job described in the job offer and/or visa petition is still available to me.  If I am informed of any change in this employment before I leave for the United States, I will immediately notify the nearest United States Consul of such change.  I intend to proceed to that employer and commence the job described promptly after my arrival in the United States.

 

______________________

SIGNATURE

 

______________________

DATE

 

(c)  (U) The post must reproduce the statement locally and translate it as required.  When a visa applicant informs the consular officer of a material change in plans (for example, a change of employer, type of work to be performed, or location of employment) the officer must require the alien to obtain certification for the new employment or otherwise satisfy certification requirements before a visa may be issued.  If a material change of plans becomes known after a visa has been issued, you must withdraw the visa for possible revocation pursuant to 9 FAM 504.12, and so inform the alien.

(2)  (U) Continuing Availability of Certified Employment:  In certain cases involving labor certification, it may be necessary to confirm that the original offer of employment remains open to the alien.  In any case in which the instruction packet (formerly known as “Packet 3” (see 9 FAM 504.1-2)) is mailed to the alien more than nine months after the date of certification of the job offer, you must ensure that the alien receives a copy of the notice shown in 9 FAM 302.1-5(B)(4) paragraph c(1)(b).  This notice requires the alien to obtain from the employer in the United States a written statement that the employment offered to the alien is still available.  Posts should reproduce the notice locally and translate it as required.  When translated copies are reproduced, the English-language text should be reproduced as well, since aliens send the form to prospective employers. 

d. (U) Commencement of Validity Period:  The Department of Labor’s regulations (see 20 CFR 656.30(a)) provide that:

(1)  (U) Labor certification involving job offers must be deemed validated as of the date the local employment service office date-stamped the application;

(2)  (U) The validity date of labor certifications for Schedule A occupations or sheepherders is the date the application was dated by the Immigration Officer; and

(3)  (U) The filing date, established under 20 CFR 656.17(c), of an approved labor certification may be used as priority date by the Department of Homeland Security (DHS) and the Department, as appropriate.

e. (U) Substitution of Beneficiary on Approval Labor Certification:  If the DHS service center determines that a substituted alien meets the requirements set forth in the original certification as of the date it was filed with the state employment office and the Form I-140, Immigrant Petition for Alien Worker, is otherwise approved, the petition should be approved and processed like any other Form I-140 petition.  The priority date must be the date on which the labor certification was filed with any office within the employment service system of the Department of Labor.

f.  (U) Change in Petitioner's Name, Ownership, or Location:

(1)  (U) When a New Petition is Required:  A new Form I-140, Immigrant Petition for Alien Worker, must be filed if:

(a)  (U) The petitioning employer:

(i)     (U) Has been bought out by, or merged into, another corporation;

(ii)    (U) Has experienced a major organizational change; or

(iii)    (U) Has changed its name;

(b)  (U) The assets of a corporate petitioner have been sold; or

(c)  (U) There is a change in the location of the business entity where the applicant will be employed.

(2)  (U) When There is No “Significant” Change in Ownership:  If, however, the petitioner is a sole proprietor or a partnership, and there is a change in the name of the business entity for which the applicant will work, without a significant change in the ownership of the business, no new petition is required provided the position described in the petition still exists.

(3)  (U) New Petition When Location of Employment Changes:  A new petition is required in non-Schedule A cases where the petitioning employer has moved the location of the business to a different city or town.  A non-Schedule A labor certification is valid only in the standard metropolitan statistical area which includes the place of employment shown on the Form ETA-750, Application for Alien Employment Certification, or Form ETA-9089, Application for Permanent Employment Certification.  If the employer moves to a different location in the same standard metropolitan statistical area the certification remains valid.  Nevertheless, DHS requires that a new Form I-140, Immigrant Petition for Alien Worker, be filed whenever there is a change of location in a non-Schedule A case. 

(4)  (U) Referring the Case for an Advisory Opinion:  If you have difficulty determining whether there has been a "significant" change in ownership, the case should be referred to CA/VO/L/A. 

9 FAM 302.1-5(B)(5)  (U) Employment Intent Upon Admission

(CT:VISA-160;   08-19-2016)

a. (U) Labor Certification Based on Job Offer:  Any alien whose certification was based on an offer of employment must proceed immediately to the employment specified in the visa petition and/or job offer.  An alien who is unable or unwilling to proceed to the specified employment is inadmissible under INA 212(a)(5)(A).  In order that an alien may be aware that admissibility is conditioned on an intent to proceed to the specified employment, you must require the alien to read and sign a statement affirming such intention and attach the signed statement to the alien’s visa.  Posts shall reproduce the statement (see 9 FAM 302.1-5(B)(4) paragraph c(1)(b)) locally and translate it as required. 

b. (U) Alien Not Destined to Specified Employment or Seeking Work Outside Stated Profession:  You should not issue a visa if there is reason to believe that the applicant is not destined to the employment specified in the job offer or does not intend to engage in work related to the profession concerned.  You should tell the applicant what appropriate steps may be taken to show eligibility for the visa category on the basis of the actual intended employment, if it appears that the actual intended employment could qualify. 

c.  (U) Alien Appears Overqualified for Position:  The mere belief that an alien will not accept a menial job because of his or her socio-economic status is not sufficient to justify the cancellation of Part B of a labor certification or to justify a finding of inadmissibility under INA 212(a)(5)(A). 

9 FAM 302.1-5(B)(6)  (U) Consular Officer Responsibility Regarding Certification

(CT:VISA-160;   08-19-2016) 

a. (U) In General:  Certifications are made by the Department of Labor or DHS on the basis of documents submitted by the alien.  The certifying office has no means of verifying that the alien does, in fact, possess the skills, training, experience, or other qualifications claimed in the documents.  Therefore, if you, based upon the interview or an investigation, have reason to doubt whether the alien possesses such skills, training, experience, or other qualifications, you have a responsibility to resolve such doubts.  (See 9 FAM 302.1-5(B)(10) below.)  The Department of Labor has stressed that experience gained with the certified employer should be considered without prejudice in assessing the alien’s qualifications for the certified job. 

b. (U) Authority for Denial Under INA 212(a)(5)(A):

(1)  (U) Drawing upon the Board of Immigration Appeals (BIA) and the Board of Alien Labor Certification Appeals (BALCA) precedents, we have concluded that a "Totality of the Circumstances Test," rather than a "per se rule" should be used to determine whether an alien intends to comply with the labor certification.  Before a consular officer may deny an applicant for lack of intent to accept employment, you should have objective reasons to believe the alien does not intend to accept the employment.  These objective reasons should be evaluated using the "totality of circumstances" standard.

(2)  (U) The factors listed below, although not exclusive, tend to indicate that an applicant will not accept the perspective employment:

(a)  (U) Admission or statements that indicate that the applicant will not undertake the employment or will do so for only a brief time;

(b)  (U) Evidence that the applicant has bought or leased housing in a distant or different location in the United States from where the prospective employment will be located;

(c)  (U) Evidence that the applicant has bought a business in the United States or other evidence that the applicant intends to engage in some other full-time activity in the United States other than the prospective employment; or

(d)  (U) Evidence that the applicant has never worked before, or has never worked in the same type of business as that of the prospective employment.

(3)  (U) You should note that in the case of professionals, an applicant may legitimately intend to accept the employment even though commencement may not be immediate.  It may be necessary for the applicant to complete licensing procedures first.  The applicant must intend to commence work in the foreseeable future.

c.  (U) When to Cancel a Labor Certification:  You should only cancel a labor certification when the totality of circumstances shows evidence that the employer was involved in fraud or material misrepresentation in obtaining the labor certification.  This may include cases in which it appears that no bona fide job offer opportunity for U.S. workers exists because the alien will be self-employed or self-petitioned.  The Board of Alien Labor Certification Appeals has ruled the factors to consider in determining whether an alien has sought self-employment or self-certification is as follows:

(1)  (U) Whether the applicant is in a position to control or influence hiring decisions regarding the job for which labor certification is sought;

(2)  (U) Whether the alien is related to corporate directors, officers or employees;

(3)  (U) Whether the alien was an incorporator or founder of the company;

(4)  (U) Whether the alien is involved in the management of the company;

(5)  (U) Whether the alien is one of a small number of employees;

(6)  (U) Whether the alien has qualifications for the job that are identical to specialized or unusual job duties and requirements stated in the application;

(7)  (U) Whether the alien is so inseparable from the sponsoring employer because of his or her pervasive presence and personal attributes that the employer would be unlikely to continue operation without the alien; or

(8)  (U) Whether the business was established for the sole purpose of obtaining certification for the alien.

9 FAM 302.1-5(B)(7)  (U) Work Experience

(CT:VISA-160;   08-19-2016)

a. (U) Requirements for Labor Certification Approval:  In cases where work experience was required for the approval of the labor certification, the experience must have been gained prior to filing the labor certification.  If you have reason to believe that an alien had the required experience at the time the labor certification was filed, even if that experience was not indicated at the time of the filing, you may consider the labor certification to have been properly approved. 

b. (U) Experience Gained While in Unlawful Status:  There is no law or regulation which precludes experience gained by an alien while in unlawful status from being applied to fulfill job requirements for certification provided the experience was gained prior to filing the labor certification. 

9 FAM 302.1-5(B)(8)  (U) Labor Certification Indicates Higher Wage than Alien Currently Earning

(CT:VISA-160;   08-19-2016)

(U) In a situation where an alien is already working for the employer who filed the labor certification, and the alien is currently earning a salary lower than the labor certification indicates the alien will be paid, the Department of Labor has determined that the higher wage need not be paid until the alien immigrates to the United States.

9 FAM 302.1-5(B)(9)  (U) English Proficiency

(CT:VISA-160;   08-19-2016)

(U) Proficiency in English is not essential to certification under Schedule A or in job offer cases, except for graduates of medical schools.  You must evaluate the importance of English proficiency, particularly for secretaries, stenographers, and teachers, in relation to the public charge provisions in INA 212(a)(4).  Proficiency in English is essential if an employer specifies on Part A of Form ETA-750, Application for Alien Employment Certification, that knowledge of English is required for satisfactory job performance, or in the case of a graduate of a medical school.

9 FAM 302.1-5(B)(10)  (U) Misrepresentations in Labor Certification Cases

(CT:VISA-160;   08-19-2016)

a. (U) In General:

(1)  (U) Certification and employer’s statements are assumed to be valid in the absence of any evidence to the contrary, and you should not interpret their role as a requirement to readjudicate each and every petition.  Examples of indicators which could justify further scrutiny, however, would include:

(a)  (U) A known high frequency of fraud in cases of a particular profession within the consular district;

(b)  (U) Inconsistencies between the applicant’s general demeanor and the claimed profession; or

(c)  (U) Obvious discrepancies among the petition’s supporting documentation which warrant investigation by the anti-fraud unit.

(2)  (U) If you determine that the certification was obtained by fraud or misrepresentation of a material fact on the part of the employer, you would have to document your findings in a memorandum and return the petition to U.S. Citizenship and Immigration Services (USCIS) with a recommendation for reconsideration and revocation.  If you determine that the certification was obtained by fraud or misrepresentation of a material fact on the part of the alien, youmust submit an advisory opinion request to the Department.  If the Department concurs, then you may :

(a)  (U) Invalidate the labor certification;

(b)  (U) Cancel any priority date obtained therefrom; and

(c)  (U) Refuse the visa application under INA 212(a)(5)(A).

(3)  (U) Invalidation of the labor certification automatically revokes the petition in accordance with the DHS regulations at 8 CFR 205.2(c), and the Department of Labor, 20 CFR Part 656.30 or Part 656.31.

b. (U) Misrepresentation by the Employee:  Since misrepresentation by the employee would constitute concealment of an independent ground of inadmissibility (i.e., INA 212(a)(5)(A)), a material misrepresentation of the employee’s qualifications for the position that result in an AO concurring in cancellation of the labor certification would also result in the visa applicant being found ineligible under INA 212(a)(6)(C)(i).

c.  (U) Misrepresentation by the Employer:  A misrepresentation by the employer alone would not make the applicant inadmissible under INA 212(a)(6)(C).  However, if the employer is not a U.S. citizen, it might bring the employer within the purview of INA 212(a)(6)(E). 

d. (U) Cases in Which the Employee Will Be Self-Employed :   If it appears thatthe applicant will be self-employed or self-petitioned, that would provide a basis for returning the petition to USCIS with a recommendation for petition recommendation and invalidation of the labor certification.  The Board of Alien Labor Certification Appeals has ruled that the following factors should be considered in determining whether an alien has sought self-employment certification:

(1)  (U) Whether the applicant is in a position to control or influence hiring decisions regarding the job for which the labor certification is sought;

(2)  (U) Whether the alien is related to corporate directors, officers, or employees;

(3)  (U) Whether the alien was an incorporator or founder of the company;

(4)  (U) Whether the alien is involved in the management of the company;

(5)  (U) Whether the alien is one of a small number of employees;

(6)  (U) Whether the alien has qualifications for the job that are identical to specialized or unusual job duties and requirements stated on the application;

(7)  (U) Whether the alien is so inseparable from the sponsoring employer because of his or her pervasive presence and personal attributes that the employer would be unlikely to continue operation without the alien; or

(8)  (U) Whether the business was established for the sole purpose of obtaining labor certification for the alien.

9 FAM 302.1-5(B)(11)  (U) Defining Full-time Employment

(CT:VISA-160;   08-19-2016)

(U) Generally, full-time employment consists of 35 to 40 hours of work a week.  The controlling principle, however, is what is prevailing for the occupation. Airline pilots, for example, may work considerably less than 40 hours a week, but this would probably be considered full-time employment.

9 FAM 302.1-5(B)(12)  (U) Requests for Employment Information

(CT:VISA-160;   08-19-2016)

a. (U) The Department of Labor and its regional and State offices are not equipped to provide information on job openings for prospective immigrants.

b. (U) The U.S. Employment Service is a domestic service only and cannot assist people abroad in locating employment in this country.  Therefore, you and other employees engaged in visa work must not suggest to visa applicants that they write to such agencies requesting advice and assistance in finding prospective employment and must, as necessary, advise them against such action.

9 FAM 302.1-5(B)(13)  (U) Procedures for Obtaining Labor Certification

(CT:VISA-160;   08-19-2016)

(U) For detailed Department of Labor information about Schedule A labor certifications please see 20 CFR 656.5.

9 FAM 302.1-5(B)(14)  (U) Disposition of Unused Labor Certifications

(CT:VISA-160;   08-19-2016)

a. (U) Alien Ineligible:  When there is a refusal or a quasi-refusal and Form ETA-750, Application for Alien Employment Certification, or Form ETA-9089, Application for Permanent Employment Certification, and supporting documents are pertinent to the alien’s ineligibility, the consular officer shall retain them in the post’s refusal file.  However, posts shall retain the original of Form ETA-750-A “Offer of Employment”, or Form ETA-9089 only if it appears that the employer made incorrect statements therein or that the offer of employment was not made in good faith.  You must inform the employer that the alien is ineligible and that the pertinent form and documents have been retained as part of the post’s file. 

b. (U) Certification Unused for Other Reasons:  If the certification will not be used because the job offer has been withdrawn or because the alien decides not to accept the employment offered, you must return the petition and the supporting documents to the approving office of USCIS under cover of a memorandum. 

9 FAM 302.1-5(B)(15)  (U) Spouse or Child of Principal Alien Exempt from Labor Certification

(CT:VISA-160;   08-19-2016)

(U) The spouse or child of an alien who is not inadmissible under INA 212(a)(5)(A) does not need a certification regardless of sex, dependency, or future employment plans.  Although only one spouse needs a certification or must be in a status which renders INA 212(a)(5)(A) inapplicable, the other spouse and the children would be exempt from the certification requirement only if accompanying or following to join the principal alien.  They could not be exempt for the purpose of preceding the principal alien.

9 FAM 302.1-5(B)(16)  (U) Address of U.S. Department of Labor Regional Officers

a. (U) Region I–Boston serves:   (Connecticut, Maine, Massachusetts, New Hampshire, New Jersey, New York, Rhode Island, Vermont, Puerto Rico and Virgin Islands): U.S. Department of Labor, Employment and Training Administrator John  F. Kennedy Federal Building Room E 350 Boston, MA 02203  Phone: (617) 788-0170  Fax: (617) 788-0101

b. (U) Region II- Philadelphia serves:  (Delaware, Washington D.C., Maryland, Pennsylvania, Virginia and West Virginia): U.S. Department of State, Employment and Training Administration Suite 825 East  The Curtis Center 170 South Independence Mall West  Philadelphia, PA 19106  Phone: (215) 861-5205

c.  (U) Region III- Atlanta serves:  (Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina and Tennessee):  Regional Administrator U.S. Department of Labor/ETA, Atlanta Federal Center  61 Forsyth St. Rm. 6M12  Atlanta, Georgia  Phone: (404) 302-5300  Fax: (404) 302-5382

d. (U) Region IV – Dallas serves:  (Arkansas, Louisiana, New Mexico, Oklahoma, Colorado, Montana, North Dakota, South Dakota, Utah, Wyoming and Texas): Regional Administrator U.S. Department of Labor/ETA,  525 Griffin Street Room 317 Dallas, TX 75202
Phone: (972) 850-4600  Fax: (972) 850-4605

e. (U) Region V – Chicago serves: (Illinois, Indiana, Michigan, Minnesota, Ohio, Iowa, Kansas, Missouri, Nebraska and Wisconsin):
Acting Regional Administrator U.S. Department of Labor/ETA, 230 South Dearborn Street, 6th floor Chicago, IL 60604
Phone: (312) 596-5403  Fax: (312) 569-5401

f.  (U) Region VI – San Francisco serves:   (Arizona, California, Hawaii, Nevada, Alaska, Idaho, Oregon, Washington and Guam):
Regional Administration U.S. Department of Labor/ETA, 90 7th Street, Suite 17-300 San Francisco, CA  94103  Phone: (415) 625-7900  Fax: (415) 625-7903 (West)  (415) 625-7923 (East)

The telephone numbers set forth in this section are not toll-free.

9 FAM 302.1-5(C)  (U) Advisory Opinions

(CT:VISA-160;   08-19-2016)

a. (U) Significant Changes in Ownership:  If you have difficulty determining whether there has been a "significant" change in ownership, refer the case to CA/VO/L/A for an AO. 

b. (U) Invalidating Labor Certifications:  In all cases where you believe the certification should be invalidated, request an AO from CA/VO/L/A.  The request must detail the basis for the doubts. 

9 FAM 302.1-5(D)  (U) Waiver

9 FAM 302.1-5(D)(1)  (U) Waivers for Immigrants

(CT:VISA-160;   08-19-2016)  

(U) No waiver is available at the time of visa application.  However, under INA 212(k), DHS may waive this inadmissibility for an IV holder at the port of entry.

9 FAM 302.1-5(D)(2)  (U) Waivers for Nonimmigrants

(CT:VISA-160;   08-19-2016)  

(U) INA 212(a)(5) does not apply to nonimmigrants.

9 FAM 302.1-5(E)  Unavailable

9 FAM 302.1-5(E)(1)  Unavailable

(CT:VISA-160;   08-19-2016)

Unavailable

9 FAM 302.1-5(E)(2)  Unavailable

(CT:VISA-160;   08-19-2016)

Unavailable

9 FAM 302.1-6  (U) UNQUALIFIED Physicians - INA 212(a)(5)(B)

9 FAM 302.1-6(A)  (U) Grounds

(CT:VISA-160;   08-19-2016)

(U) INA 212(a)(5)(B) renders inadmissible an alien who is coming to the United States for the principal purpose of performing services as a member of the medical profession if the alien is a graduate of a medical school not accredited, unless, the alien:

(1)  (U) Passed parts I and II of the National Board of Medical Examiners Examination (NBMEE) or an equivalent as determined by the Secretary of Health and Human Services; and

(2)  (U) Is competent in oral and written English.  INA 212(a)(5)(B) is applicable only to “graduates of a medical school” as defined in INA 101(a)(41) and only to such graduates who are beneficiaries of employment-based second or third preference petitions.  This section is not applicable to an alien who is an immediate relative, a family-sponsored preference immigrant, or a refugee.  Moreover, it is not applicable to an alien entitled to derivative preference status as the spouse of an employment-based preference petition beneficiary.

9 FAM 302.1-6(B)  (U) Application

9 FAM 302.1-6(B)(1)  (U) Defining “Graduates of a Medical School”

(CT:VISA-160;   08-19-2016)

a. (U) Graduates of a Medical School:  The term “graduates of a medical school” is defined in INA 101(a)(41).  An alien who has graduated from a foreign medical school is commonly referred to as a “foreign medical graduate” or, usually, “FMG”.

b. (U) National or International Renown:  The phrase “national or international renown” has not been defined.  Determinations as to whether an alien is of national or international renown are made on a case-by-case basis.  In general, evidence required to support a claim to international renown would be similar to that required to support a claim to qualification for labor certification under Schedule A, Group II Aliens of Exceptional Ability in Sciences or Arts.  Evidence required to support a claim to national renown, while not required to be of the same high standard, would nonetheless have to show a degree of excellence comparable to that which would result in national renown in the United States.

9 FAM 302.1-6(B)(2)  (U) Meeting Requirements

(CT:VISA-160;   08-19-2016)

a. (U) In General:  An alien subject to the provisions of INA 212(a)(5)(B) may meet the requirements of that section in one of several ways, as described in below. 

b. (U) Graduating from Accredited Medical School:  An alien may meet the requirements of INA 212(a)(5)(B) by establishing that the medical school from which he or she graduated has been accredited by a body or bodies approved for the purpose by the Secretary of Education.  The only body so approved is the Liaison Committee for Medical Education (LCME).  The LCME was founded in 1942 and has confined itself to evaluating and accrediting medical schools in the United States and Canada.  In this connection, any case involving an alien who graduated from a medical school in Canada or the United States before the accreditation system began in 1942 will require individual verification of the status of the medical school as of the time the alien graduated. 

c.  (U) National Board of Medical Examiners (NBME) Examination: 

(1)  (U) NBME Examination Applicable to U.S. and Canadian Medical Schools:  The policy of the NBME is that only students at, or graduates of, U.S. or Canadian medical schools are eligible to take the NBME Part I and Part II Examination. (See 9 FAM 302.1-6(B)(2) paragraph c(2) below concerning the American University Medical School at Beirut.)  The NBME exam (and the FMGES) have been replaced by the United States Medical Licensing Examination (USMLE). 

(2)  (U) NBME Examination at American University in Beirut Prior to 1982:  Although the American University Medical School in Beirut, Lebanon is not a U.S. or Canadian medical school, through 1982 it had a special relationship with American education authorities under which its graduates were permitted to take the NBME Examination.  Medical students took Part I of the Examination in the next-to-last year of study and Part II shortly after graduation.  This arrangement was terminated in 1982 and graduates thereafter will not have taken the examination. 

d. (U) Examinations Equivalent to NBME Examination:  In 1992, the Federation of State Medical Boards and the National Board of Medical Examiners announced that all licensure programs would be replaced by the United States Medical Licensing Examination (USMLE).  This examination has been determined by the Secretary of Health and Human Services to be the equivalent of Parts I and II of the NBME for the purposes of INA 212(a)(5)(B).  

e. (U) Special Provisions for Certain Foreign Medical Graduates:  Special provisions have been enacted by the Congress relating to foreign medical graduates (FMG’s) in the United States as of January 9, 1978.  An FMG who, as of that date, was both fully and permanently licensed to practice medicine in a State of the United States (as defined in INA 101(a)(36)) and actually practicing medicine in a State is considered to have passed Parts I and II of the NBME Examination. 

9 FAM 302.1-6(B)(3)  (U) Competence in Written and Oral English

(CT:VISA-160;   08-19-2016)

a. (U) English not Required for Alien of National or International Renown:  An alien of national or international renown in the field of medicine (see 9 FAM 302.1-6(B)(1) above) is not required to demonstrate competence in written or oral English.  

b. (U) English Proficiency Examination:  An alien required to demonstrate competence in oral and written English must do so by passing the USMLE English proficiency examination. 

c.  (U) Evidence of English Language Competence in Some Cases:  Aliens were allowed to take the 1977 VQE (the first time it was given) without first demonstrating competence in oral and written English.  This is also true of the 1982 and 1983 VQE.  In 1978, 1979, 1980, and 1981, however, an alien had to demonstrate the requisite competence in order to be allowed to take the VQE.  Thus, an alien who took the 1978, 1979, 1980, or 1981 VQE is presumed to have met the requirement for competence in oral and written English, while an alien who took the 1977, 1982, or 1983 VQE will have to present separate evidence that the alien meets the oral and written English competence requirement. 

d. (U) English Language Competence for Foreign Medical Graduates Licensed in United States as of January 9, 1978:  An alien who benefits from the special provision described in 9 FAM 302.1-6(B)(2) paragraph e above (relating to FMG’s fully licensed and practicing in the United States as of January 9, 1978) will have to establish by separate evidence the requisite competence in oral and written English. 

9 FAM 302.1-6(B)(4)  (U) Adjudicating

(CT:VISA-160;   08-19-2016)

a. (U) Determining Applicability at Time of Adjudication of Applications for Labor Certification and/or Second or Third Employment-Based Preference Petitions:  Since all aliens to whom INA 212(a)(5)(B) applies are also aliens to whom INA 212(a)(5)(A) applies as well, determinations under INA 212(a)(5)(B) are made in connection with the adjudication of the application for labor certification and/or, if applicable, the adjudication of the second or third preference petition.  For this reason, you will not normally have occasion to make such determinations. 

b. (U) Employment-Based Preference Petitions for Eligibility:  Department of Homeland Security/U.S. Citizenship and Immigration Services(DHS/USCIS) will not approve an employment-based preference petition in behalf of an FMG unless it has established that the beneficiary is not inadmissible under INA 212(a)(5)(B).  All such petitions are supposed to bear a notation signifying that this determination has been made.  Approved employment-based preference petitions in behalf of FMG’s which bear the appropriate notation should be given the same credence as any other approved petition and should be questioned only as provided for in section 9 FAM 504.2.  An employment-based preference petition approved in behalf of an FMG that does not bear the appropriate notation should be returned to the approving office of USCIS with a request that the question be addressed and that the petition be appropriately annotated. 

9 FAM 302.1-6(C)  (U) Advisory Opinions

(CT:VISA-160;   08-19-2016) 

(U) An AO is not required for a potential INA 212(a)(5)(B) ineligibility; however, if you have a question about the interpretation or application of law or regulation, you may request an AO from CA/VO/L/A.

9 FAM 302.1-6(D)  (U) Waiver

9 FAM 302.1-6(D)(1)  (U) Waivers for Immigrants

(CT:VISA-160;   08-19-2016) 

(U) There is no waiver available for immigrant visa applicants.

9 FAM 302.1-6(D)(2)  (U) Waivers for Immigrants

(CT:VISA-160;   08-19-2016)

(U) This is not applicable to nonimmigrant visa applicants.

9 FAM 302.1-6(E)  Unavailable

9 FAM 302.1-6(E)(1)  Unavailable

(CT:VISA-160;   08-19-2016)

Unavailable

9 FAM 302.1-6(E)(2)  Unavailable

(CT:VISA-160;   08-19-2016)

Unavailable

9 FAM 302.1-7  (U) UNCERTIFIED FOREIGN HEALTH-CARE WORKERS - INA 212(a)(5)(C)

9 FAM 302.1-7(A)  (U) Grounds

(CT:VISA-160;   08-19-2016)

(U) INA 212(a)(5)(C) of the Immigration and Nationality Act (INA) provides that, subject to INA 212(r), any alien seeking to enter the United States, as an immigrant or a nonimmigrant, for the purpose of performing health-care occupations (other than physicians), is inadmissible unless he or she presents a certificate from the Commission on Graduates of Foreign Nursing Schools (CFNS) or an equivalent independent credentialing organization approved by the Attorney General, who transferred exercise of this authority from the Department of Justice to the Department of Homeland Security (DHS) in consultation with the Secretary of the Department of Health and Human Services (HHS), verifying that:

(1)  (U) The alien’s education, training, license, and experience meet all applicable statutory and regulatory requirements for admission into the United States specified in the application; are comparable with that of an American healthcare worker;

(2)  (U) The alien has the level of competence in oral and written English language proficiency considered by the Secretary of HHS, in consultation with the Secretary of Education, to be appropriate for the healthcare worker of the kind in which the alien will be engaged, as shown by an appropriate score on one or more nationally recognized, commercially available, standardized assessments of the applicant’s ability to speak and write English; and

(3)  (U) The majority of States licensing the profession in which the alien intends to work recognize a test predicting the success on the profession’s licensing or certification examination, that the alien has passed such examination.

9 FAM 302.1-7(B)  (U) Application

9 FAM 302.1-7(B)(1)  (U) Definitions - Healthcare Occupations

(CT:VISA-160;   08-19-2016)

a. (U) Nurse, Professional (Medical Service) [Alternate Titles:  Nurse, Certified Nurse, Licensed, Registered]:  applies to persons meeting the educational, legal, and training requirements to practice as professional nurses, as required by a State Board of Nursing. This individual performs acts requiring substantial specialized judgment and skill, care and counsel of ill, injured, or infirm persons and in promotion of health and prevention of illness.  Classifications are made according to types of nursing activity such as:

(1)  (U) Director;

(2)  (U) Nursing Service (Medical Service); or

(3)  (U) Nurse, General Duty (Medical Service).

b. (U) Physical Therapist (Medical Service) [Alternate Titles Physiotherapist]:

(1)  (U) Plans and administers medically prescribed physical therapy treatment for patients suffering from injuries, or muscle, nerve, joint, and bone disease, in order to restore function, relieve pain, and prevent disability; reviews physicians’ referrals (prescription) and patients’ conditions and medical records to determine physical therapy treatment required;

(2)  (U) Tests and measures patients’ strength, motor development, sensory perception, respiratory and circulatory efficiency and records, and develops treatment programs;

(3)  (U) Plans and prepares written treatment program;

(4)  (U) Administers manual exercises; instructs, motivates, and assists patient to perform various physical activities, including use of crutches, canes, and prosthesis;

(5)  (U) Administers treatments involving application of physical agents, using equipment such as hydrotherapy tanks and whirlpool baths, moist packs, ultraviolet and infrared lamps, ultrasound machines, massage techniques, and body physiology;

(6)  (U) Records and evaluates the effects of treatment at various stages and adjusts treatments to achieve maximum benefit, and may instruct patient and family in treatment procedures to be continued at home;

(7)  (U) Confers with physician and other practitioners to obtain additional patient information, suggests revisions in treatment program, and integrates physical treatment with other aspects of patient's healthcare;

(8)  (U) Instructs and directs work activities of assistants, aides, and students;

(9)  (U) Plans and conducts lectures and training programs on physical therapy and related topics for medical staff, students, and community groups;

(10) (U) May teach physical therapy techniques and procedures in educational institutions; and

(11) (U) May write technical articles and reports for publications; may plan, direct, and coordinate physical therapy program and be the designated director.

(12) (U) Physical therapist must comply with State requirement for licensure.

c.  (U) Occupational Therapist (Medical Service):

(1)  (U) Plans, organizes, and conducts occupational therapy programs in hospital, institution, or community settings to facilitate development and rehabilitation of mentally, physically, or emotionally handicapped individuals;

(2)  (U) Plans activities such as manual arts and crafts, practice in functional, prevocational, vocational and homemaking skills, and activities of daily living, and participation in sensorimotor, educational, recreational, and social activities to help patient or handicapped persons develop or regain physical and mental functioning;

(3)  (U) Consults and coordinates with other members of the rehabilitation team to select activity program consistent with needs and capabilities of the individual;

(4)  (U) Selects constructive activities suited to the individual's physical capacity, intelligence level, and interest;

(5)  (U) Prepares the individual for return to employment, assists in restoration of functions, and aids in adjustment to disability;

(6)  (U) Teaches individual skills and techniques required for participation in activities and evaluates individual progress; and

(7)  (U) May conduct, plan, direct, and coordinate training program and occupational therapy programs and be designated director, occupational therapy (Medical Service).

d. (U) Speech-Language Pathologists and Audiologists (Profess. & Kin) [Alternate Titles: Speech Clinician; Speech Therapist]:

(1)  (U) Specialize in diagnosis and treatment of speech and language problems, and engage in scientific study of human communication: diagnose and evaluate speech and language skills as related to educational, medical, social, and psychological factors;

(2)  (U) Plan, direct, or conduct habilitative and rehabilitative treatment programs to restore communicative efficiency of individuals with communication problems of organic and nonorganic etiology;

(3)  (U) Provide counseling and guidance and language development therapy to handicapped individuals;

(4)  (U) Administer, score, and interpret specialized hearing and speech tests;

(5)  (U) Develop, implement, and monitor individualized plans for assigned clients to meet individual needs, interests, and abilities, using audio-visual equipment, such as tape recorders, overhead projectors, filmstrips, and other demonstrative materials;

(6)  (U) Review treatment plans and assess individual performance to modify and change, or write new programs;

(7)  (U) Maintain records, establishment's policy, and administrative regulations as required by law;

(8)  (U) May act as consultant to educational, medical, and other professional groups, and serve as consultant to classroom teachers to incorporate speech and language activities into daily schedule;

(9)  (U) May teach manual sign language to students incapable of speaking, and instruct staff in use of special equipment designed to serve handicapped.  See audiologist (Medical Service) 076.101-010 for one who specializes in diagnosis of rehabilitative services for auditory problems; and

(10) (U) Attend meetings and conferences and participate in other activities to promote professional growth.

e. (U) Medical Technologist (also known as Clinical Laboratory Scientists Service):

(1)  (U) Performs medical laboratory tests, procedures, experiments, and analyses to provide data for diagnosis, treatment, and prevention of disease and conduct chemical analyses of body fluids, such as blood, urine, and spinal fluid to determine presence of normal and abnormal components;

(2)  (U) Studies blood cells, their numbers, and morphology, using microscopic techniques;

(3)  (U) Performs blood group, type, and compatibility test for transfusion purposes;

(4)  (U) Analyzes test results and enters findings in computer;

(5)  (U) Engages in medical research under direction of the Medical Technologist, Chief (medical service) 078.161-010;

(6)  (U) May train and supervise students; and

(7)  (U) May specialize in areas such as hematology, blood-bank, serology, immunohematology, bacteriology, histology, or chemistry.

f.  (U) Medical-Laboratory Technician (Medical Service) [Alternate Titles:  Clinical Laboratory Technicians]:

(1)  (U) Performs routine tests in medical laboratory to provide data for use in diagnosis and treatment of disease;

(2)  (U) Conducts quantitative and qualitative chemical analyses of body fluid, such as blood, urine, and spinal fluid, under the supervision of medical technologist (Medical Service) 078.261-038;

(3)  (U) Incubates bacteria for specified period and prepares vaccines and serums by standard laboratory methods;

(4)  (U) Inoculates fertilized eggs, broths, or other bacteriological media with organism;

(5)  Performs blood counts, using microscope; conducts blood tests for transfusion purposes;

(6)  Prepares standard volumetric solutions and reagents used in testing;

(7)  Tests vaccines for sterility and virus inactivity;

(8)  May draw blood from patient’s finger, ear lobe, or vein, observing principles of asepsis to obtain blood samples; and

(9)  May specialize in hematology, blood bank, cytology, histology, or chemistry.

g. Physician Assistant (Medical Service):

(1)  Provides healthcare services to patients under the direction and responsibility of physician:  examines patient, performs comprehensive physical examination, and compiles patient medical data, including health history and results of physical examination;

(2)  Administers or orders diagnostic tests, such as x-ray, electrocardiogram, and laboratory tests, and interprets test results for deviation from normal;

(3)  Performs therapeutic procedures, such as injections, immunizations, suturing, wound care, and managing infections;

(4)  Develops, implements, records patient management plans, and assists provision of continuity of care; and

(5)  Instructs and counsels patients regarding compliance with prescribed therapeutic regimens, normal growth and development, family planning, emotional problems of daily living, and health maintenance.

9 FAM 302.1-7(B)(2)  (U) Occupations to Which INA 212(a)(5)(C) Applies

(CT:VISA-160;   08-19-2016)

(U) The requirement of INA 212(a)(5)(C) has been interpreted to apply only to the following seven healthcare occupations:

(1)  (U) Licensed Practical Nurses, Licensed Vocational Nurses, and Registered Nurses;

(2)  (U) Physical Therapists;

(3)  (U) Occupational Therapists;

(4)  (U) Speech-language Pathologists and Audiologists;

(5)  (U) Medical Technologists (also known as clinical laboratory scientists);

(6)  (U) Medical Technicians (also known as clinical laboratory technicians; and

(7)  (U) Physician Assistants.

9 FAM 302.1-7(B)(3)  (U) Alternative Qualifications Under INA 212(r)

(CT:VISA-160;   08-19-2016)

(U) In lieu of a certification under the standards of INA 212(a)(5)(C), an alien nurse can present to you  a certified statement from the CGFNS (or equivalent, independent credentialing organization approved for the certification of nurses) that:

(1)  (U) The alien has a valid and unrestricted license as a nurse in a State where the alien intends to be employed and that such State verifies that the foreign licenses of the alien nurses are authentic and unencumbered;

(2)  (U) The alien has passed the National Council Licensure Examination (NCLEX); and

(3)  (U) The alien is a graduate of a nursing program that meets the following requirements:

(a)  (U) The language of instruction was English;

(b)  (U) The nursing program was located in a country which:

(i)     (U) Was designated by CGFNS no later than 30 days after the enactment of the NRDAA, based on CGFNS' assessment that designation of such country is justified by the quality of nursing education and English language proficiency;

(ii)    (U) Was designated on the basis of such assessment by unanimous agreement of CGFNS and any equivalent credentialing organizations which the DHS has approved for the certification of nurses; and

(iii)    (U) The nursing program was in operation on or before November 12, 1999; or has been approved by unanimous agreement of CGFNS or any equivalent credentialing organizations, which the DHS has approved for certification of nurses.

9 FAM 302.1-7(B)(4)  (U) Health-care Workers Not Subject to INA 212(a)(5)(C)

(CT:VISA-160;   08-19-2016)

a. (U) Other Healthcare Workers:  Any other health-care occupations that are not mentioned in 9 FAM 302.1-7(B)(2), above, such as chiropractors, dentists, dental technicians, dental assistants, acupuncturists, psychologists, nutritionists, medical teachers, medical researchers, managers of health-care facilities, medical consultants to the insurance industry, etc., will not be required to obtain certification requirements under INA 212(a)(5)(C) and their visa cases should, therefore, be processed to conclusion.

b. (U) Spouse or Dependent of Immigrant Alien:  INA 212(a)(5)(C) specifically refers to aliens who are seeking to enter the United States under INA 203(b).  A dependent alien admitted for the primary purpose of family unity whose occupation may be that of health-care worker is not subject to the provisions of INA 212(a)(5)(C).

c.  (U) Family-Sponsored Immigrant or Employment-Based Immigrant in a Non-Healthcare Occupation:  An alien whose usual occupation is that of health care worker who is seeking permanent status as a family-sponsored immigrant or as an employment-based immigrant who will not be providing health-care services is not subject to INA 212(a)(5)(C). 

9 FAM 302.1-7(B)(5)  (U) Certification Authority Granted to Certain Organizations

(CT:VISA-160;   08-19-2016)

(U) DHS has published the final regulations relating to the credentialing of immigrants coming to the United States in all health-care occupations.  Nurses, occupational therapists, physical therapists, speech language pathologists and audiologists, medical technologists (also known as clinical laboratory scientists), medical technicians (also known as clinical laboratory technicians), and physician assistants, who have been certified by the Commission on Graduates of Foreign Nursing Schools (CGFNS), as well as occupational therapists certified by the National Board for Certification in Occupational Therapy (NBCOT), and physical therapists certified by the Foreign Credentialing Commission on Physical Therapy (FCCPT), may obtain immigrant visas, if otherwise qualified.

9 FAM 302.1-7(B)(6)  (U) Qualifying as an Immigrant Health-care Worker

(CT:VISA-160;   08-19-2016)

a. (U) An alien who wishes to immigrate to the United States to perform in a health-care occupation must be the beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker, and must be certified by the CGFNS, the NBCOT, or the FCCPT. 

b. (U) Certification by these organizations is evidence that the applicants have satisfied the requirements of section 343 of Public Law 104-208, including a passing score on the appropriate English language examination. 

c.  (U) If, however, the personal interview reveals an obvious lack of appropriate English language proficiency or appropriate knowledge of the certified healthcare field, you should submit the case to the Department (CA/VO/L/A) for an advisory opinion.  An approved certificate does not excuse the applicant from all the other relevant statutory and regulatory requirements for visa issuance.

9 FAM 302.1-7(B)(7)  (U) Validity of Certificates Issued by Commission on Graduates of Foreign Nursing Schools (CGFNS), National Board for Certification in Occupational Therapy (NBCOT), and Foreign Credentialing Commission on Physical Therapy (FCCPT)

(CT:VISA-160;   08-19-2016)

(U) Certificates issued by CGFNS, NBCOT, and FCCPT must be valid at the time of visa issuance and at the time for any admission into the United States, or change of status within the United States.  Individual’s certification or certified statement must be used within five years of the date that it was issued.

9 FAM 302.1-7(B)(8)  (U) Aliens Exempt from English Tests

(CT:VISA-160;   08-19-2016)

a. (U) In General:  INA 212(a)(5)(C)(ii) gives the Secretary of Health and Human Services, in consultation with the Secretary of Education, the sole authority to set the level of competence in oral and written English appropriate for all health care fields in which the alien will be engaged.  Individuals who seek to meet the English language requirements will be required to do one of the English language tests mentioned in 9 FAM 302.1-7(B)(8) paragraph c.

b. (U) General Exemption for Certain Individuals:  According to 8 CFR 212.15(g)(2), aliens who have graduated from a college or university of professional training school located in Australia, Canada (except Quebec), Ireland, New Zealand, the United Kingdom, and the United States, are exempt from the English language requirement. 

c.  (U) Approved English Language Tests for Certain Healthcare Workers:  The HHS has approved the following tests as acceptable English language testing systems for the purpose of health care workers certification in certain occupations:

(1)  (U) Educational Testing Service (ETS);

(2)  (U) Test of English in International Communication (TOEIC) Service International; and

(3)  (U) International English Language Testing System (IELTS).

d. (U) Passing English Test Scores for Certain Healthcare Occupations: 

(1)  (U) Occupational and physical therapists.  An alien seeking to join the labor force in the United States as an occupational or physical therapist must obtain the following scores on the English tests administered by ETS:

(a)  (U) Test of English as a Foreign Language (TOEFL);

(b)  (U) Paper-Based 560;

(c)  (U) Computer-Based 220;

(d)  (U) Test of Written English (TWE): 4.5; and

(e)  (U) Test of Spoken English: 50.

(U) NOTE:  The certifying organizations shall not accept the results of the TOEIC or the IELTS for the occupation of occupational therapy or physical therapy.

(2)  (U) Registered nurses and other health care workers requiring the attainment of a baccalaureate degree:  An alien coming to the United States to perform labor as a registered nurse (other than a nurse presenting a certified statement under section 212 (r) of the Act) or to perform labor in another health care occupation requiring a baccalaureate degree (other than occupational or physical therapy) must obtain one of the following combinations of scores to obtain a certificate:

(a)  (U) ETS:  TOEFL: Paper-Based 540, Computer-Based 207, TWE: 4.0; TSE: 50;

(b)  (U) TOEIC Service International:  TOEIC: 725; plus TWE:4.0 and TSE: 50; or

(c)  (U) IELTS:  6.5 overall with a spoken band score of 7.0.  This would require the academic module.

(3)  (U) Occupations requiring less than a baccalaureate degree:  An alien coming to the United States to perform labor in a health care occupation that does not require a baccalaureate degree must obtain one of the following combinations of scores to obtain a certificate:

(a)  (U) ETS:  TOEFL:  Paper-based 530, computer-Based 197; TWE: 4.0; TSE; 50;

(b)  (U) TOEIC Service International:  TOEIC: 700; plus TWE 4.0 and TSE: 50; or

(c)  (U) IELTS:  6.0 overall with a spoken band score of 7.0.  This would allow either the academic or the General module.

9 FAM 302.1-7(C)  (U) Advisory Opinions

(CT:VISA-160;   08-19-2016)

(U) If the personal interview reveals an obvious lack of appropriate English language proficiency or appropriate knowledge of the certified healthcare field, submit the case to CA/VO/L/A for an AO.  An approved certificate does not excuse the applicant from all the other relevant statutory and regulatory requirements for visa issuance.

9 FAM 302.1-7(D)  (U) Waivers

9 FAM 302.1-7(D)(1)  (U) Waivers for Immigrants

(CT:VISA-160;   08-19-2016)

(U) No waiver is available, but this can be overcome.

9 FAM 302.1-7(D)(2)  (U) Waivers for Nonimmigrants

(CT:VISA-160;   08-19-2016)

(U) To ensure that health-care facilities remain fully staffed, DHS and the Department have agreed to exercise blanket waiver authority under INA 212(d)(3)(A) for nonimmigrants and temporarily waive the certification requirement until July 26, 2004.  On and after July 26, 2004, discretion must be applied on a case-by-case basis. This waiver also applies to Canadians seeking admission in Trade NAFTA (TN) status.  Health-care workers who receive waivers for INA 212(a)(5)(C) ineligibilities should be issued visas limited to a single entry with six-month validity.

9 FAM 302.1-7(E)  Unavailable

9 FAM 302.1-7(E)(1)  Unavailable

(CT:VISA-160;   08-19-2016)

Unavailable

9 FAM 302.1-7(E)(2)  Unavailable

(CT:VISA-160;   08-19-2016)

Unavailable

9 FAM 302.1-8  (U) Failure of Application to Comply with INA - INA 221(g)

9 FAM 302.1-8(A)  (U) Grounds

(CT:VISA-160;   08-19-2016)

(U) No visa or other documentation shall be issued to an alien if the application fails to with the provisions of the INA or implementing regulations.

9 FAM 302.1-8(B)  (U) Application

(CT:VISA-160;   08-19-2016)

a. (U) Refusal Under INA 221(g):  You may refuse an alien's visa application under INA 221(g)(2) as failing to comply with the provisions of INA or the implementing regulations if:

(1)  (U) The applicant fails to furnish information as required by law or regulations;

(2)  (U) The application contains a false or incorrect statement other than one which would constitute a ground of ineligibility under INA 212(a)(6)(C);

(3)  (U) The application is not supported by the documents required by law or regulations;

(4)  (U) The applicant refuses to be fingerprinted as required by regulations;

(5)  (U) The necessary fee is not paid for the issuance of the visa or, in the case of an immigrant visa, for the application therefor;

(6)  (U) In the case of an immigrant visa application, the alien fails to swear to, or affirm, the application before the consular officer; or

(7)  (U) The application otherwise fails to meet specific requirements of law or regulations for reasons for which the alien is responsible.

b. (U) Reconsideration of Refusals:  A refusal of a visa application under paragraph (a)(1) of this section does not bar reconsideration of the application upon compliance by the applicant with the requirements of INA and the implementing regulations or consideration of a subsequent application submitted by the same applicant.

9 FAM 302.1-8(C)  (U) Advisory Opinions

(CT:VISA-160;   08-19-2016) 

(U) An AO is not required for a potential INA 221(g) refusal; however, if you have a question about the interpretation or application of law or regulation, you may request an AO from CA/VO/L/A. 

9 FAM 302.1-8(D)  (U) Waiver

9 FAM 302.1-8(D)(1)  (U) Waivers for Immigrants

(CT:VISA-160;   08-19-2016) 

(U) There is no waiver available under 221(g).  However, see 9 FAM 306.2-2(A) for information on overcoming an INA 221(g) refusal.

9 FAM 302.1-8(D)(2)  (U) Waivers for Nonimmigrants

(CT:VISA-160;   08-19-2016)

(U) There is no waiver available under 221(g).  However, see 9 FAM 306.2-2(A) for information on overcoming an INA 221(g) refusal.

9 FAM 302.1-8(E)  Unavailable

(CT:VISA-160;   08-19-2016)

Unavailable

9 FAM 302.1-9  (U) Aliens Subjects to INA 222(g)

9 FAM 302.1-9(A)  (U) Grounds

(CT:VISA-160;   08-19-2016)

(U) INA 222(g) renders void the visas of nonimmigrants who remain in the United States "beyond the period of stay authorized by the Secretary of Homeland Security.”

9 FAM 302.1-9(B)  (U) Application

9 FAM 302.1-9(B)(1)  (U) In General

(CT:VISA-160;   08-19-2016)

a. (U) In General:  INA 222(g) applies only to aliens:

(1)  (U) Admitted on the basis of a NIV; and

(2)  (U) Who remained beyond the period of authorized stay (see 9 FAM 302.1-9(B)(1)).  Also, see Summary of INA 222(g) Scenarios for examples of when INA 222(g) would or would not apply at 9 FAM 302.1-9(B)(6) below.

b. (U) Admission of Nonimmigrant Visa:   INA 222(g) does not apply to aliens:

(1)  (U) Who entered the United States on the Visa Waiver Program (VWP) (or some other type of visa waiver);

(2)  (U) Who entered via parole;

(3)  (U) Who entered without inspection;

(4)  (U) Who entered through one of the 'diplomatic visa' categories   ;

(5)  (U) Who entered through any other means, other than on the basis of a NIV;

(6)  (U) Who were admitted from Canada or Mexico with an I-68 or DSP-150 Border crossing card, or any other Canadian or Mexican entrants to the United States who were not issued an I-94 (and who were not subsequently formally found to be out of status by USCIS, an immigration judge (IJ) or the Board of Immigration Appeals (BIA).); or

(7)  (U) Who physically could not depart the United States due to the fact that they were in custody of law enforcement at the time (in prison, for example), see Matter of C-C-, 3 I&N Dec.221, 222 (BIA 1948).

c.  (U) Remaining Beyond Period Authorized by the Secretary of Homeland Security: 

(1)  (U) In General: For the purposes of INA 222(g), an alien who entered the United States on an NIV will be considered to have overstayed his or her period of authorized stay if:

(a)  (U) The alien remained in the United States beyond the specific date stated on the Form I-94, Arrival-Departure Record; or

(b)  (U) USCIS, an IJ, or the BIA has formally found that the alien has violated his or her status.

(2)  (U) Aliens Admitted Until Date Certain:  Aliens admitted on "B" visas and most other visa categories are granted a specified period of stay and must depart on or before the date specified on the Form I-94.  An alien who departs by the date indicated on the Form I-94 would not be ineligible under INA 222(g), unless the USCIS, an IJ, or the BIA actually makes a finding of a status violation before such departure. 

(3)  (U) Aliens Admitted for Duration of Stay:  Although most nonimmigrants are admitted for a specified period of time, students ("F"), exchange visitors ("J"), information media representatives ("I"), and diplomats and other foreign officials ("A," "G" or "NATO") as well as many Canadians are usually admitted for "duration of status."  An alien admitted for duration of status is ineligible under INA 222(g) only if:

(a)  (U) USCIS finds a status violation while adjudicating a request for an immigration benefit; or

(b)  (U) An IJ finds a status violation in proceedings against the alien.  In determining whether INA 222(g) applies, your assessment of whether the alien did or did not maintain lawful status is irrelevant.

(4)  (U) Aliens with Pending Change of Status or Extension of Status Applications:   An alien is not ineligible under INA 222(g) even though the departure date on Form I-94, Arrival-Departure Record, passes, if:

(a)  (U) The alien files a timely application for extension of stay or for a change of status; and

(b)  (U) The application is subsequently approved.  In addition, if an alien departs after the date on the Form I-94 passes, but before his or her application for extension or change of status has been decided by USCIS, they must be subject to a blanket exemption from INA 222(g), if the application was filed in a "timely manner" and is "nonfrivolous" in nature.  You may consider an application nonfrivolous if it is not, on its face, a groundless excuse for the applicant to remain in the United States to engage in activities incompatible with his or her status.  Posts may be satisfied that an alien filed in a timely manner using evidence such as a record in USCIS Person Centric Query Service (PCQS) or the dated receipt or canceled check from USCIS for the payment of the application fee to extend or change status together with evidence of the expiration of the alien's legal status.

(c)  (U) Nonimmigrants admitted D/S (Duration of Stay) who leave the United States while the extension of stay or change of status application is pending, are not subject to INA 222(g), provided that no status violation was found that would have resulted in the termination of the period of stay authorized.  In addition, D/S nonimmigrants whose extension of stay or change of status applications were denied for reasons other than a status violation are not subject to INA 222(g).

(5)  (U) Aliens Granted Voluntary Departure:  An alien who stays beyond the date indicated on his or her Form I-94, or an alien who is found by DHS, an IJ, or the BIA to have violated his or her status, is subject to INA 222(g), even if the alien is simultaneously or subsequently granted voluntary departure.  This remains true even though the alien would not be "unlawfully present" under INA 212(a)(9)(B) during the period granted for voluntary departure (VD). 

9 FAM 302.1-9(B)(2)  (U) Requirement to Obtain Future Visas In Country of Nationality INA 222(g)(2)

(CT:VISA-160;   08-19-2016)

a. (U) In General: 

(1)  (U) An alien who has overstayed the authorized period of admission may no longer use the visa with which he or she entered the United States.  To re-enter the United States, the alien must obtain a new NIV in the country of the alien’s nationality.  If an alien is in possession of two valid visas, however, only the visa used by the alien to enter the United States (i.e., the visa which is the subject of the overstay finding) is void under INA 222(g).  

(2)  (U) The combination B-1/B-2 NIV/BCCs are subject to INA 222(g) and become automatically void when the alien remains in the United States beyond the authorized admission date.  Combination B-1/B-2 NIV/BCCs that have become automatically void under INA 222(g) must be physically canceled.  (See 9 FAM 41.112 N7.5.)  BCCs, however, as defined in INA 101(a)(26) are not nonimmigrant visas per se, and do not become automatically void under INA 222(g) when the alien remains in the United States beyond the period of authorized stay.

b. (U) "Homeless" Cases:  Where there is no consular office in the country of the alien's nationality, an alien subject to INA 222(g) may apply for a new visa at either:

(1)  (U) A consular office designated by the Department to accept the IV application of such alien regardless whether he or she has filed such application (see 9 FAM 302.9-9(B)(6)); or

(2)  (U) A post in the country in which the alien has the right of permanent residence.

c.  (U) Aliens with Dual Nationality:  An alien who possesses more than one nationality and who has, or immediately prior to the alien's last entry into the United States had, a residence in one of the countries of the alien's nationality must apply at a consular office in the country of such residence. 

d. (U) "Stateless" Aliens:  An alien determined by the consular officer to be "stateless," shall, for the purposes of INA 222(g), be considered to be a national of the country that issued the alien's travel documentation. 

e. (U) Aliens Benefitting From the Extraordinary Circumstances Exemption:  

(1)  (U) In General:

(a)  (U) An alien subject to INA 222(g) may be exempted from the requirement of applying for future NIV in his or her country of nationality, if the Department finds that "extraordinary circumstances" exist.

(b)  (U) The Department's regulation at 22 CFR 41.101(d)(1) defines "extraordinary circumstances" as circumstances where compelling humanitarian or national interests exist or where necessary for the effective administration of the immigration laws.

(c)  (U) Extraordinary circumstances shall not be found upon the basis of convenience or financial burden to the alien, the alien's relative, or the alien's employer.

(2)  (U) Physicians Serving in Under-Served Area:  The Department has determined that "extraordinary circumstances" exist for an alien physician serving in an under-served area of the United States under INA 214(l) for whom an application for a waiver of the two-year foreign residence requirement of INA section 212(e) and/or a petition to accord H-1B status was filed prior to the end of the alien's authorized stay and was subsequently approved, but whose authorized stay expired during the adjudication of such application(s). 

(3)  (U) Alien with Residence in Third Country:  An alien subject to INA 222(g) whose current foreign residence is in a country other than the country of his or her nationality, should be considered to be applying under "extraordinary circumstances" if he or she applies for a visa at a post in the country of his or her current residence rather than in the country of his or her nationality. 

(4)  (U) Alien Applying for Diplomatic Visa:  INA 102 limits the applicability of provisions of the INA relating to ineligibilities to certain classes of nonimmigrants.  The classes include the nonimmigrant categories A-1, A-2, G-1 through G-4, and NATO-1 through NATO-6; i.e., the “diplomatic visa” categories.  Generally, applicants in these categories must, therefore, be exempted from the reapplication provisions of INA 222(g).  If, however, they are formally found by USCIS to have committed a status violation while USCIS was adjudicating a request for an immigration benefit or an IJ or the BIA finds a status violation in proceedings against the alien, then they should be subject to INA 222(g)

(5)  (U) Extraordinary Circumstance Findings in Individual Cases:   Upon the favorable recommendation of an immigration or consular officer, if the Deputy Assistant Secretary for Visa Services determines that extraordinary circumstances exist, an alien or group of aliens may be exempted from the requirements of INA 222(g).  (See 9 FAM 302.9-9(C).)

f.  (U) Individual Exceptions:  Aliens not eligible for the blanket 222(g)(2)(B) extraordinary circumstances exception may seek the exception on a case-by-case basis.  If it appears to you that compelling humanitarian or national interests may exist or that an exception may be necessary for the effective administration of the immigration laws, you have the discretionary authority to recommend to the Deputy Assistant Secretary for Visa Services (VO DAS) that exceptional circumstances be found in the individual case.  In determining whether to make a favorable recommendation to the VO DAS, keep in mind that extraordinary circumstances shall not be found upon the basis of convenience or financial burden to the alien, the alien's relative, or the alien's employer.  If the VO DAS determines that extraordinary circumstances exist, an individual exception will be granted.

(1)  (U) When INA 222(g)(2)(B) exception is granted:  When a nonimmigrant visa is issued to a third country applicant based on the extraordinary circumstances exception in INA 222(g)(2)(B) (blanket or individual exception), the new visa is to be annotated “INA section 222(g) overcome under extraordinary circumstances.”  This annotation indicates that INA 222(g) was overcome and that the alien was allowed to apply for the nonimmigrant visa in a third country; or

(2)  (U) When INA 222(g)(2)(B) exception is denied:  When an alien subject to INA 222(g) files a nonimmigrant visa application in a third country, and that application is denied, you will place a notation in the Consular Lookout and Support System (CLASS) under code “222.”  The notation “222” means the applicant was instructed to obtain a visa at a consular office located in the country of his or her nationality.

9 FAM 302.1-9(B)(3)  (U) Determining Overstays

(CT:VISA-160;   08-19-2016)

a. (U) Reliance on CLASS Entries:  

(1)  (U) In some instances, the Department of Homeland Security (DHS) may enter a lookout when a visa is cancelled under INA 222(g) and DHS removes the alien or permits the alien to withdraw his or her application for admission.  In such cases, DHS will use the code "275" for voluntary withdrawals or "ER7" (or "ER6") to indicate expedited removal for aliens not in possession of the required document (or for fraud).  Also, if USCIS, an IJ, or the BIA determines that an alien previously admitted for duration of status has violated status, the alien’s name may be entered into the DHS lookout database.  These entries would automatically pass into CLASS.

(2)  (U) In those instances when DHS does not enter the lookout, it is your responsibility to determine whether the alien is inadmissible under INA 222(g)

b. (U) Department of Homeland Security (DHS) Departure Controls: Eventually, when DHS departure controls are in place, DHS will document overstays at the time of departure.  Until such time, you cannot be expected to make a complete search and determination as to whether an alien has remained beyond the period of authorized stay.  Therefore, unless in the course of visa processing the possibility of a previous overstay becomes apparent through information otherwise routinely obtained (e.g., through inspection of passport, answer to the section on Previous U.S. Travel Information on the Form DS-160, Online Nonimmigrant Visa Application (see 9 FAM 403.2-5(A))), lengthy interrogation of applicants to determine whether the alien is subject to INA 222(g) should not ordinarily be undertaken.

9 FAM 302.1-9(B)(4)  (U) Annotating the Visa

(CT:VISA-160;   08-19-2016)

(U) Nonimmigrant visas (NIV) issued to aliens exempted from INA 222(g) under extraordinary circumstances should be annotated:

INA Section 222(g) overcome where extraordinary circumstances are found by the Secretary of State to exist.

9 FAM 302.1-9(B)(5)  (U) Refusal and Fee Retention

(CT:VISA-160;   08-19-2016)

(U) If you determine that an alien is ineligible for visa processing under INA 222(g):

(1)  (U) The visa on which the overstay occurred should be physically cancelled (if it is still valid);

(2)  (U) The alien should be advised, in writing, that he or she has been determined to be ineligible under INA 222(g) and must apply for a visa in the country of his or her nationality;

(3)  (U) The applicant's name should be entered into CLASS under code "222" with the annotation "Visa Overstay" in the free field; and

(4)  (U) The Machine Readable Visa (MRV) fee should be retained.

9 FAM 302.1-9(B)(6)  (U) Summary of INA 222(g) Scenarios

(CT:VISA-160;   08-19-2016)

 
CATEGORY

Subject to INA 222(g)

Not Subject to INA 222(g)

Alien admitted until specified date; maintains status; departs by date specified.

 

Not Subject

Alien admitted until specified date; maintains status; departs after date specified.

Subject

 

Alien admitted until specified date; violates status; departs by date specified.

 

Not Subject

Alien admitted until specified date; violates status; departs by date specified, but is found by USCIS, an IJ, or the BIA to have violated status.

Subject

 

Alien admitted until specified date; violates status; departs after date specified.

Subject

 

Alien admitted until specified date; stays beyond specified date; but granted voluntary departure (V/D).

Subject

 

Alien admitted until specified date, found by USCIS, an IJ, or the BIA to have violated status but is granted V/D; departs prior to both date on Form I-94, Arrival-Departure Record and date specified in V/D order.

Subject

 

Alien admitted for duration of status (D/S), maintains status and departs.

 

Not subject

Alien admitted for (D/S), violates status (not found in violation by USCIS, an IJ or the BIA).

 

Not subject

Alien admitted for (D/S), found by USCIS or IJ in violation of status.

Subject

 

Alien admitted for (D/S), found by DHS an IJ, or the BIA in violation of status, granted voluntary departure.

Subject

 

Alien admitted until specified date; applies for extension or change of status within applicable time limit prior to expiration of Form I-94; remains in U.S. after date on Form I-94; and application is subsequently approved.

 

Not Subject

Alien admitted until specified date; applies in timely fashion for extension or change of status, remains in U.S. after date on I-94 and application is subsequently denied.

Subject

 

Alien admitted for D/S; applies in timely fashion for extension or change of status; application is subsequently denied for reasons other than status violation.

 

Not Subject

Alien admitted until specified date; submits a timely and non-frivolous application for extension or change of status; departs U.S. after expiration of Form I-94, but before a decision on the Form I-94 extension/change of status application.

 

Not Subject

Alien admitted until specified date; files late application for change or extension of status; USCIS accepts late application because alien established that filing was for good cause and otherwise satisfies the requirements for retroactive application; and application is ultimately approved:

 

Not Subject

Alien entered on Visa Waiver Program (VWP), on parole, without inspection, or otherwise without nonimmigrant visa, (NIV) regardless of whether alien overstays or violates status.

 

Not Subject

9 FAM 302.1-9(C)  (U) Advisory Opinions

(CT:VISA-160;   08-19-2016)

a. (U) If posts are unsure whether an applicant is subject to INA 222(g), or if posts have questions as to whether “extraordinary circumstances” exist for a favorable recommendation for an exemption from INA 222(g), you may request an AO from (CA/VO/L/A). 

b. (U) If you believe that “extraordinary circumstances” do exist, you must request an AO from CA/VO/L/A for approval of an exception to 222(g).  CA/VO/L/A will not render an AO on an "extraordinary circumstances" request unless the applicant has been found subject to INA 222(g).

9 FAM 302.1-9(D)  (U) Waiver

9 FAM 302.1-9(D)(1)  (U) Waivers for Immigrants

(CT:VISA-160;   08-19-2016)  

(U) INA 222(g) is not applicable to immigrant visa applicants.

9 FAM 302.1-9(D)(2)  (U) Waivers for Nonimmigrants

(CT:VISA-160;   08-19-2016)

(U) No waiver is available.  See 9 FAM 302.1-9(B)(2) paragraph e for examples of aliens benefitting from the extraordinary circumstances exception.

9 FAM 302.1-9(E)  Unavailable

9 FAM 302.1-9(E)(1)  Unavailable

(CT:VISA-160;   08-19-2016)

Unavailable

9 FAM 302.1-9(E)(2)  Unavailable

(CT:VISA-160;   08-19-2016)

Unavailable