9 FAM 302.10†

(U) Ineligibility based on Citizenship restrictions - INA 212(a)(8)

(CT:VISA-333;†† 04-12-2017)
(Office of Origin: CA/VO/L/R)

9 FAM 302.10-1 †(U) Statutory and Regulatory Authority

9 FAM 302.10-1(A) †(U) Immigration and Nationality Act

(CT:VISA-272;†† 12-20-2016)

(U) INA 212(a)(8)(A) (8 U.S.C. 1182(a)(8)(A)); INA 212(a)(8)(B) (8 U.S.C. 1182(a)(8)(B)); INA 212(d)(3) (8 U.S.C. 1182(d)(3)); INA 314 (8 U.S.C. 1425); INA 315 (8 U.S.C. 1426).

9 FAM 302.10-1(B) †(U) Code of Federal Regulations

(CT:VISA-272;†† 12-20-2016)

(U) 22 CFR 40.81; 22 CFR 40.82.

9 FAM 302.10-1(C) †(U) Other

(CT:VISA-272;†† 12-20-2016)

(U) Presidential Proclamation 4483, Granting pardon for violations of the Selective Service Act, August 4, 1964, to March 28, 1973.

9 FAM 302.10-2 †(U) Ineligible for Citizenship - INA 212(a)(8)(A)

9 FAM 302.10-2(A) †(U) Grounds

(CT:VISA-272;†† 12-20-2016)

(U) INA 212(a)(8)(A) renders inadmissible any immigrant who is permanently ineligible for citizenship.†

9 FAM 302.10-2(B) †(U) Application

9 FAM 302.10-2(B)(1) †(U) Resident Alien Previously Exempt from Military Service

(CT:VISA-272;†† 12-20-2016)

a. (U) INA 212(a)(8)(A) only applies to immigrant visa applicants.† It does not apply to nonimmigrant visa applicants.† INA 315 states that ďany alien who applies or has applied for exemption or discharge from training or service in the Armed Forces or in the National Security Training Corps of the United States on the ground that he is an alien, and is or was relieved or discharged from such training or service on such ground, shall be permanently ineligible to become a citizen of the United States.Ē

b. (U) A grant of exemption from military service does not in itself constitute a ground of deportation, and some resident aliens continue to reside in the United States after being relieved from service.† However, if such aliens depart from the United States, INA 212(a)(8)(A) may bar their readmission as an immigrant.† Any alien who requested and was granted exemption from military service based upon alienage (whether pursuant to treaty agreement or a provision of U.S. law) is generally disqualified from becoming a U.S. citizen by INA 315, and is, therefore, ineligible to receive an immigrant visa under INA 212(a)(8)(A).† The only exception to ineligibility to citizenship under INA 315 arises when the alien claims exemption from training or service in the U.S. military pursuant to rights accorded in a treaty, if before the alien claimed such an exemption he or she has served in the armed forces of a foreign country of which the alien was a national.† Such aliens would not be ineligible under INA 212(a)(8)(A).  INA 212(a)(8)(A) does not apply to nonimmigrant visa applicants. Any alien listed in CLASS, credited to the ďrefusing PostĒ SSL (Selected Service System) may be regarded as having applied for and received relief from U.S. military service on the basis of alienage.

c.† (U) An alien who had previously been found to be ineligible under INA 212(a)(8)(A) may, subsequent to November 29, 1990, reapply for a visa and be found eligible to receive a visa.

9 FAM 302.10-2(B)(2) †(U) Alienís Conviction of Desertion

(CT:VISA-272;†† 12-20-2016)

(U) INA 212(a)(8)(A) also extends to instances in which a person is disqualified from citizenship by INA 314.† However, INA 314 is limited to cases where the person deserted or departed from the United States in time of war and was duly convicted before an appropriate tribunal for such desertion or departure.

9 FAM 302.10-2(B)(3) †(U) Effect of President Carterís Pardon

(CT:VISA-333;†† 04-12-2017)

(U) See Presidential Proclamation 4483.

9 FAM 302.10-2(C) †(U) Advisory Opinions

(CT:VISA-333;†† 04-12-2017)†

(U) You must request an AO from CA/VO/L/A for cases involving aliens listed under this category who deny applying for and obtaining relief from U.S. military service on the basis of alienage.

9 FAM 302.10-2(D) †(U) Waiver

9 FAM 302.10-2(D)(1) †(U) Waivers for Immigrants

(CT:VISA-333;†† 04-12-2017)†

(U) No waiver is available.† However, INA 212(c) relief is available for certain returning residents.† An AO is required in all cases.†

9 FAM 302.10-2(D)(2) †(U) Waivers for Nonimmigrants

(CT:VISA-333;†† 04-12-2017)

(U) INA 212(a)(8)(A) is not applicable to nonimmigrant visa applicants.

9 FAM 302.10-2(E) †Unavailable

9 FAM 302.10-2(E)(1) †Unavailable

(CT:VISA-272;†† 12-20-2016)

Unavailable

9 FAM 302.10-2(E)(2) †Unavailable

(CT:VISA-272;†† 12-20-2016)

Unavailable

9 FAM 302.10-3 †(U) Aliens Who Departed or Remained Outside the United States to Avoid Military Service - INA 212(a)(8)(B)

9 FAM 302.10-3(A) †(U) Grounds

(CT:VISA-272;†† 12-20-2016)

(U) Any person who has departed from or who has remained outside the United States to avoid or evade training or service in the armed forces in time of war or a period declared by the President to be a national emergency is inadmissible.†

9 FAM 302.10-3(B) †(U) Application

9 FAM 302.10-3(B)(1) †(U) Draft Evaders

(CT:VISA-272;†† 12-20-2016)

a. (U) Scope of Section:† INA 212(a)(8)(B) applies to anyone, including a former U.S. citizen, who is currently applying for a visa (other than a person who left as a nonimmigrant and is seeking to reenter the United States as a nonimmigrant)†

b. (U) Primary Purpose of Departure From or Remaining Outside United States:† To invoke ineligibility under INA 212(a)(8)(B), the departure or remaining abroad must have been for the primary purpose of evading or avoiding military service.† The consular officer must determine in the light of all the facts and circumstances of the individual case whether an alien departed from or remained outside the United States primarily to evade or avoid military service or whether they did so for some other reason.†

9 FAM 302.10-3(B)(2) †(U) War or National Emergency

(CT:VISA-272;†† 12-20-2016)

(U) INA 212(a)(8)(B) has application at any time the United States is at war or in a state of national emergency, and a state of national emergency existed from September 24, 1939, to September 24, 1978.† Consequently, as indicated in 9 FAM 302.10-3(B)(5) below, an alien who departed from or remained outside the United States to evade or avoid military service between September 8,  1939, and September 24, 1978, would be subject to the second clause of INA 212(a)(8)(B).

9 FAM 302.10-3(B)(3) †(U) Status at Time of Departure Determines Applicability

(CT:VISA-272;†† 12-20-2016)

(U) INA 212(a)(8)(B) does not bar the issuance of a nonimmigrant visa to an alien who departed to evade or avoid military service while in the United States as a nonimmigrant.† A permanent resident legal alien, however, who departed from or remained outside the United States to evade or avoid military service would be ineligible for both immigrant and nonimmigrant visas.

9 FAM 302.10-3(B)(4) †(U) Conviction Not Necessary for Ineligibility

(CT:VISA-272;†† 12-20-2016)

(U) Under this ground of ineligibility, no conviction for desertion or draft evasion is required. The consular officer need only be satisfied from the evidence that the applicant departed from or remained outside the United States to evade or avoid military service.

9 FAM 302.10-3(B)(5) †(U) Presidential Pardon for Vietnam-era Violators of Selective Service Laws

(CT:VISA-272;†† 12-20-2016)

a. (U) Vietnam-Era Draft Evaders Considered Relieved of Ineligibility Under INA(a)(8)(B):† President Carter's general pardon has been interpreted to include alien Vietnam‑era violators of the Selective Service laws only.† Vietnam-era deserters are not included in the pardon.† Accordingly, aliens who departed the United States or remained abroad for the purpose of avoiding induction into service between August 4, 1964, and March 28, 1973, are considered to have been relieved of excludability under the second clause of INA 212(a)(8)(B), and may be issued any type of immigrant or nonimmigrant visa for which they are found eligible, if they have not been convicted for that action.†

b. (U) Effect of Pardon on Vietnam-Era Deserters:† Vietnam-era deserters are not included in the pardon, thus they are subject to a finding of ineligibility under INA 212(a)(8)(B).†

c. (U) Aliens Ineligible for Citizenship Not Affected by Pardon: †The Presidential pardon provides no relief for an alien found ineligible under the first part of INA 212(a)(8)(B) as an alien who is ineligible for citizenship i.e., a person who was convicted of either desertion from or leaving the country to evade military service.† (See 9 FAM 302.10-3(B)(2).)† Ineligibility to citizenship because of seeking and obtaining exemption from service on the grounds of alienage is irrelevant in this context.†

9 FAM 302.10-3(B)(6) †(U) Effect of Discharge on Deserters

(CT:VISA-272;†† 12-20-2016)

(U) A deserter who subsequently received a discharge may (or may not) have been relieved of such ineligibility, depending on the disposition of the desertion aspect of the case by the appropriate branch of service.  

9 FAM 302.10-3(B)(7) †(U) Requesting Alienís Selective Service Record

(CT:VISA-272;†† 12-20-2016)

a. (U) In General:† If you are unable to establish clearly the applicability of INA 212(a)(8)(B) from the alienís statements and from records available at the post, you must request an AO from CA/VO/L/A in order to obtain the alienís Selective Service Record.†††

b. Unavailable

(1)† Unavailable

(2)† Unavailable

(3)† Unavailable

(4)† Unavailable

(5)† Unavailable

(6)† Unavailable

(7)† Unavailable

(8)† Unavailable

(9)† Unavailable

(10) Unavailable

(11) Unavailable

9 FAM 302.10-3(B)(8) †(U) Obtaining Information from Selective Service Records

(CT:VISA-272;†† 12-20-2016)

(U) National Archives and Records Administration has sole responsibility of ownership, storage, and retrieval of Selective Service records for men born before 1960. Consequently, Selective Service can no longer access any of these records.† All requests should be mailed directly to:

National Archives & Records Administration
ATTN: Archival Programs
P.O. Box 28989
St. Louis, MO 63132-0989

9 FAM 302.10-3(C) †(U) Advisory Opinions

(CT:VISA-272;†† 12-20-2016)††

(U) You must request an AO from CA/VO/L/A for any potential INA 212(a)(8)(B) ineligibility involving a subsequent discharge.†

9 FAM 302.10-3(D) †(U) Waiver

9 FAM 302.10-3(D)(1) †(U) Waivers for Immigrants

(CT:VISA-272;†† 12-20-2016)††

(U) No waiver is available.†

9 FAM 302.10-3(D)(2) †(U) Waivers for Nonimmigrants

(CT:VISA-272;†† 12-20-2016)†

(U) An INA 212(d)(3)(A) waiver is available.† See 9 FAM 305.4-3 for additional information.

9 FAM 302.10-3(E) †Unavailable

9 FAM 302.10-3(E)(1) †Unavailable

(CT:VISA-272;†† 12-20-2016)

Unavailable

9 FAM 302.10-3(E)(2) †Unavailable

(CT:VISA-272;†† 12-20-2016)

Unavailable