9 FAM 302.12
(U) Ineligibility based on other activities - INA 212(a)(10)
(CT:VISA-1913; 02-14-2024)
(Office of Origin: CA/VO)
9 FAM 302.12-1 (U) Statutory and Regulatory Authority
9 FAM 302.12-1(A) (U) Immigration and Nationality Act
(CT:VISA-272; 12-20-2016)
(U) INA 203(c)(2) (8 U.S.C. 1153(c)(2)); INA 212(a)(10)(A) (8 U.S.C. 1182(a)(10)(A)); INA 212(a)(10)(B) (8 U.S.C. 1182(a)(10)(B)); INA 212(a)(10)(C) (8 U.S.C. 1182(a)(10)(C)); INA 212(a)(10)(D) (8 U.S.C. 1182(a)(10)(D)); INA 212(a)(10)(E)); INA 212(d)(3)(A) (8 U.S.C. 1182(d)(3)(A)); INA 214(i) (8 U.S.C. 1184(i)); INA 214(l) (8 U.S.C. 1184 (l)); INA 237(a)(6) (8 U.S.C. 1227(a)(6)).
9 FAM 302.12-1(B) (U) Code of Federal Regulations
(CT:VISA-272; 12-20-2016)
(U) 22 CFR 40.101; 22 CFR 40.102; 22 CFR 40.103; 22 CFR 40.104; 22 CFR 40.105 8 CFR 208.20.
9 FAM 302.12-2 (U) PRACTICING POLYGAMISTS - INA 212(a)(10)(A)
9 FAM 302.12-2(A) (U) Grounds
(CT:VISA-1596; 08-02-2022)
(U) INA 212(a)(10)(A) provides that an IV applicant who is coming to the United States to practice polygamy is ineligible for a visa.
9 FAM 302.12-2(B) (U) Application
9 FAM 302.12-2(B)(1) (U) Polygamy Defined
(CT:VISA-303; 03-16-2017)
(U) Polygamy is the historical custom or religious practice of having more than one wife or husband at the same time. It is also called plural marriage. It is distinguished from bigamy which is a criminal act resulting from having more than one spouse at a time without benefit of a prior divorce. A conviction for or an admission of bigamy might preclude issuance under INA 212(a)(2)(A)(i)(I) (crime involving moral turpitude). See generally, Matter of G-, 6 IN Dec. 9 (B.I.A 1953).
9 FAM 302.12-2(B)(2) (U) Reserved
(CT:VISA-796; 05-16-2019)
(U) Reserved.
9 FAM 302.12-2(B)(3) (U) Distinguishing Current Practice from Advocacy, Belief, or Past Practice
(CT:VISA-1913; 02-14-2024)
(U) The applicant must intend to actually practice polygamy in the United States to be ineligible. The applicant's mere advocacy of or belief in the practice, or the fact that the applicant in the past may have practiced polygamy, would not be sufficient to render a finding of ineligibility. To sustain an ineligibility, an officer would have to find the applicant will maintain a married relationship with more than one spouse while in the United States. If one spouse is traveling with the applicant while the other spouse remains overseas, the applicant can only be found ineligible, if you believe the applicant will continue a relationship with the left-behind spouse - for example visiting the spouse, providing financial support, keeping in phone contact. If an applicant is legally married to a second spouse, but maintains no active relationship with that spouse, then that would not be practicing polygamy and would not sustain an INA 212(a)(10)(A) ineligibility. However, if the applicant is applying for a spousal-based visa category, the existence of a valid marriage may make them unqualified for the visa, even if they are not found ineligible under INA 212(a)(10)(A), as indicated in 9 FAM 302.12-2(B)(4).
9 FAM 302.12-2(B)(4) (U) Applicants Coming to the United States to Practice Polygamy
(CT:VISA-1596; 08-02-2022)
(U) We interpret the phrase "...coming to the United States to practice polygamy..." to mean that an applicant who intends to practice polygamy when they enter the United States in any immigrant category is ineligible, not that the applicant necessarily must be coming to the United States in a spousal category. Thus, an immigrant who seeks an IV based on employment in the United States and who intends to practice polygamy upon entry is ineligible.
9 FAM 302.12-2(B)(5) (U) Inapplicable to Nonimmigrants
(CT:VISA-1360; 09-10-2021)
(U) INA 212(a)(10)(A) is not applicable to nonimmigrants. However, those visa categories which confer derivative status for the spouse of a principal applicant do not allow for issuance of derivative visas to multiple spouses. Only the first spouse from the first legally valid marriage may qualify for a derivative visa. You may, however, use discretion in issuing the additional spouse(s) a B-2 visa, if otherwise eligible and qualified.
9 FAM 302.12-2(C) (U) Advisory Opinions
(CT:VISA-1150; 09-14-2020)
(U) An AO is not required for a potential INA 212(a)(10)(A) ineligibility; however, if you have a question about the interpretation or application of law or regulation, you may request an AO from L/CA.
9 FAM 302.12-2(D) (U) Waiver
9 FAM 302.12-2(D)(1) (U) Waivers for Immigrants
(CT:VISA-1913; 02-14-2024)
(U) No waiver is available for an IV applicant ineligible under INA 212(a)(10)(A). INA 212(c) relief is available for certain returning residents.
9 FAM 302.12-2(D)(2) (U) Waivers for Nonimmigrants
(CT:VISA-272; 12-20-2016)
(U) INA 212(a)(10)(A) is not applicable to nonimmigrants.
9 FAM 302.12-2(E) Unavailable
9 FAM 302.12-2(E)(1) Unavailable
(CT:VISA-272; 12-20-2016)
Unavailable
9 FAM 302.12-2(E)(2) Unavailable
(CT:VISA-272; 12-20-2016)
Unavailable
9 FAM 302.12-3 (U) Guardian Required to Accompany a Helpless individual - INA 212(a)(10)(B)
9 FAM 302.12-3(A) (U) Grounds
(CT:VISA-1360; 09-10-2021)
(U) INA 212(a)(10)(B) provides that an individual, accompanying another person who is inadmissible and who is certified to be helpless due to sickness, mental or physical disability, or infancy pursuant to INA 232(c), and whose protection or guardianship is determined to be required by the inadmissible applicant who is certified to be helpless is inadmissible.
9 FAM 302.12-3(B) (U) Application
(CT:VISA-1360; 09-10-2021)
(U) INA 212(a)(10)(B) applies at the time an applicant applies for admission to the United States and does not apply at the time of the visa application.
9 FAM 302.12-3(C) (U) Advisory Opinions
(CT:VISA-272; 12-20-2016)
(U) INA 212(a)(10)(B) does not apply at the time of the visa application.
9 FAM 302.12-3(D) (U) Waiver
9 FAM 302.12-3(D)(1) (U) Waivers for Immigrants
(CT:VISA-272; 12-20-2016)
(U) INA 212(a)(10)(B) is not applicable at the time of visa application.
9 FAM 302.12-3(D)(2) (U) Waivers for Nonimmigrants
(CT:VISA-272; 12-20-2016)
(U) INA 212(a)(10)(B) is not applicable at the time of visa application.
9 FAM 302.12-3(E) Unavailable
9 FAM 302.12-3(E)(1) Unavailable
(CT:VISA-272; 12-20-2016)
Unavailable
9 FAM 302.12-3(E)(2) Unavailable
(CT:VISA-272; 12-20-2016)
Unavailable
9 FAM 302.12-4 (U) International Child Abduction - INA 212(a)(10)(C)
9 FAM 302.12-4(A) (U) Grounds
(CT:VISA-1913; 02-14-2024)
(U) INA 212(a)(10)(C) renders an applicant ineligible so long as the applicant withholds custody of a U.S. citizen child outside of the United States from the individual granted custody of the child by a U.S. court, and so long as the child remains a "child" according to INA 101(b)(1) (i.e., unmarried and under 21 years of age). It also renders ineligible those assisting or providing material support or safe haven to the abductor. It also renders certain relatives and agents of the applicant ineligible. There is an exception for applicants who take abducted children to a country that is party to the Hague Convention on the Civil Aspects of International Child Abduction (the Convention) because the Convention provides a legal framework for the return of abducted children to the child's place of habitual residence to resolve custody disputes. Countries that are party to the Convention are listed here at HCC.
9 FAM 302.12-4(B) (U) Application
9 FAM 302.12-4(B)(1) (U) Definitions
(CT:VISA-1596; 08-02-2022)
a. (U) "Agent": An agent is generally defined as a person authorized by another person to represent or act for that person. Most cases of agent representation will be based on a contractual relationship such as attorney client, but numerous other possibilities exist. Such determinations should be made in consultation with L/CA.
b. (U) “Assisted”: Assisted includes any action that enabled the abductor to detain or retain the child or withhold custody. However, it does not include any assistance that was “de minimis,” or that bore no nexus to actions that form the basis of an ineligibility under INA 212(a)(10)(C)(i). For example, assistance that can result in ineligibility under INA 212(a)(10)(C)(ii) may include but is not necessarily limited to: helping the abductor get re-established in the foreign country; providing housing, financial support, or free childcare; and/or actively interfering with the custodial parent's efforts to enforce the U.S. custody order.
c. (U) "Child Abduction": It is defined in the statute as detaining or retaining the child, or withholding custody of the child, outside the United States after the entry of a custody order by a court in the United States granting custody to a different person. The applicant need not be responsible for removing the child from the United States to be found ineligible so long as they detain or retain the child outside the United States. The fact that the child might express a preference to reside with the applicant is not relevant. If the child continues to reside with the applicant in violation of the custody order, the applicant is detaining or retaining the child or withholding custody of the child.
d. (U) "A Court Order Granting Custody": A "court order granting custody" refers to any order by a court in the United States granting custody. The order may be of a temporary nature, providing no subsequent order by a court in the United States has been entered and temporary order has not expired. In the event there are conflicting custody orders, the custody order from the country to which the child was abducted is irrelevant to the INA 212(a)(10)(C) finding. The 10(C) finding is based on the order by a court in the United States, regardless of whether that order was issued before or after the abduction. Custody may be physical, legal, sole, or joint. Generally, 10(C) will not apply in access-only cases, including those cases in which the child's noncitizen parent had the right to move overseas with the child or the right to designate the child's primary residence.
e. (U) "A Court in the United States": A "court in the United States" refers to any federal, state, or local court having jurisdiction to grant a custody order.
f. (U) "Intentionally": Intentionally means that the applicant providing such assistance, material support or safe haven did so, purposefully and knew or reasonably should have known that such aid enabled an abductor to detain or retain a child or withhold custody of the child in violation of an order by a court in the United States. An applicant cannot make themself willfully blind to the abductor's bad conduct, the child’s custodial history, the child’s parents’ relationship, how the child came to live outside the United States, or other factors that would lead a reasonable person to conclude that the child is being detained, retained or withheld in violation of an order by a court in the United States. While the applicant does not need to know definitively that there is a custody order, they would need to know (or reasonably should have known) that there is an ongoing dispute as to the custody of the child.
g. (U) "Material Support": Material support includes, but is not limited to, an applicant aiding an abductor in the abduction itself by providing transportation, funds, false documentation, or identification to, or aiding in the communication of, any abductor.
9 FAM 302.12-4(B)(2) (U) Elements for INA 212(a)(10)(C)(i)
(CT:VISA-1360; 09-10-2021)
a. (U) An applicant is ineligible under INA 212(a)(10)(C)(i) if:
(1) (U) The child is a U.S. citizen;
(2) (U) A court in the United States has issued an order granting custody of the child to someone other than the applicant;
(3) (U) The applicant is detaining or retaining the child, or withholding custody of the child, from the person granted custody by the U.S. court order; and
(4) (U) The child is outside of the United States and in a country that is NOT a U.S. partner to the Convention.
b. (U) INA 212(a)(10)(C)(i) does not require the child to have been taken out of the United States nor does it require the applicant to have been in the United States.
9 FAM 302.12-4(B)(3) (U) Elements for INA 212(a)(10)(C)(ii)
(CT:VISA-1360; 09-10-2021)
a. (U) INA 212(a)(10)(C)(ii) provides grounds of ineligibility for applicants who support an individual whose conduct has satisfied all the elements necessary to be found ineligible under INA 212(a)(10)(C)(i).
b. (U) An applicant is ineligible under INA 212(a)(10)(C)(ii) if, the following elements are satisfied:
(1) (U) The primary abductor is an individual described in INA 212(a)(10)(C)(i), even if the primary abductor never applied for a visa. If the primary abductor is a U.S. citizen, INA 212(a)(10)(C)(ii) cannot be applied to any persons assisting the abductor because both INA 212(a)(10)(C)(i) and INA 212(a)(10)(C)(ii) require the primary abductor to be a noncitizen; and
(2) (U) The applicant intentionally assisted the abductor or intentionally provided material support or safe haven to the abductor as described in clause (i).
9 FAM 302.12-4(B)(4) (U) Designation Under INA 212(a) (10)(C)(ii)(III)
(CT:VISA-1360; 09-10-2021)
a. (U) Under INA 212(a)(10)(C)(ii)(III), the spouse (other than the spouse who is the parent of the abducted child), child (other than the abducted child), parent, sibling or agent of an abductor can be designated ineligible by the Secretary of State in the Secretary’s sole and unreviewable discretion.
b. (U) An applicant is ineligible under INA 212(a)(10)(C)(ii)(III) if the following essential elements are present:
(1) (U) The visa applicant is either a spouse, child, parent, sibling, or an agent of the abductor;
(2) (U) The abducted child has not been returned to the person granted custody or the abducted child has aged out; and
(3) (U) The agent or relatives have been designated by the Secretary of State as ineligible. There is no process currently in place for such designation and the use of INA 212(a)(10)(C)(ii)(III) will be rare. Contact your Country Officer in Children’s Issues if you think there is a case for which use of this provision may be appropriate.
9 FAM 302.12-4(B)(5) (U) Withholding a Child Outside the United States
(CT:VISA-1360; 09-10-2021)
(U) In many cases, the most difficult element in establishing ineligibility under this section will be determining the location of the child. Where an alleged abductor refuses to divulge the location of a child and the abductor is currently residing abroad, you may presume that the child is residing with the abductor. Any assertion by an abductor who resides abroad that the child remains in the United States (e.g., with relatives) should be established to your satisfaction by direct evidence.
9 FAM 302.12-4(B)(6) (U) Time of Abduction
(CT:VISA-1360; 09-10-2021)
a. (U) The timing of a U.S. custody order’s entry in relation to the time of abduction is irrelevant to visa ineligibility. The existence of a U.S. custody order, whether it was entered before or after the abduction, satisfies the custody order requirement for a finding of ineligibility under INA 212(a)(10)(C). In other words, if a court in the United States enters a U.S. custody order after the child has already left, and then any applicant who is bound by the order must return the child to the United States, to avoid ineligibility.
b. (U) For an applicant to be ineligible under INA 212(a)(10)(C)(ii), the assistance or material support does not need to be ongoing; it only has to have been provided after the applicant knew or reasonably should have known about the custody order.
9 FAM 302.12-4(B)(7) (U) Exceptions
(CT:VISA-1596; 08-02-2022)
a. (U) Government Officials: The exceptions for U.S. Government and foreign government officials apply to those government officials who are providing support to a household or individual that currently holds an abducted child, when such officials are acting in their official capacity.
b. (U) Hague Convention Countries: The law provides for an exception to be made for an applicant who takes an abducted child to a country that is a U.S. partner to the Hague Convention because the Convention provides an established legal mechanism or framework for returning the child to the child's place of habitual residence so that custody disputes may be resolved. Since the Convention provides a remedy of return, the Congress chose not to penalize an abductor who removes a child to a country that is a Hague partner. If you are uncertain whether a country is a Convention partner country, inquire with your country desk office in CA/OCS/CI's Outgoing Abductions divisions or visit the abduction resources page.
c. (U) LPRs: If you know or suspect an LPR has incurred an ineligibility under INA 212(a)(10)(C), you should not make any entries into CLASS. Instead contact CA/OCS/CI-Abduction for guidance.
9 FAM 302.12-4(B)(8) (U) Removal of the Ineligibility
(CT:VISA-1596; 08-02-2022)
(U) An individual remains ineligible under INA 212(a)(10)(C) only so long as the child has not been returned to the person granted custody by the order of a court in the United States and such person and child are permitted to return to the United States or such person's place of residence. Once the child is surrendered to the person having lawful custody, the ineligibility ceases to apply, and OCS/CI country officer will require that you delete any INA 212(a)(10)(C) ineligibilities in CLASS. See 9 FAM 303.3-4(D)(1) for more information. The ineligibility will also cease if the child reaches 21 years of age, marries, "or death(dies)."
9 FAM 302.12-4(B)(9) (U) Requests Initiated by the Office of Children's Issues (CA/OCS/CI)
(CT:VISA-1596; 08-02-2022)
a. (U) In many cases, the OCS/CI country desk officer will initiate the INA 212(a)(10)(C) visa ineligibility request and provide supporting case details and documentation such as the U.S. custody order.
b. Unavailable
c. (U) When requesting a visa revocation, the OCS/CI country desk officer will work with L/CA for concurrence before sending the request to you. If you concur with the facts as presented by the Department, you should then follow normal visa revocation procedures under 9 FAM 403.11.
9 FAM 302.12-4(C) (U) Advisory Opinions
(CT:VISA-1360; 09-10-2021)
a. (U) You must refer the case to L/CA for an AO if you believe the applicant is ineligible under INA 212(a)(10)(C).
b. Unavailable
(1) Unavailable
(2) Unavailable
9 FAM 302.12-4(D) (U) Waiver
9 FAM 302.12-4(D)(1) (U) Waivers for Immigrants
(CT:VISA-1913; 02-14-2024)
(U) No waiver is available for an IV applicant ineligible under INA 212(a)(10)(C).
9 FAM 302.12-4(D)(2) (U) Waivers for Nonimmigrants
(CT:VISA-1913; 02-14-2024)
a. (U) An INA 212(d)(3)(A) waiver is available for an NIV applicant ineligible under INA 212(a)(10)(C). See 9 FAM 305.4-3.
b. (U) Even if an applicant expresses an interest in returning the child to the United States, the ineligibility still applies until the child is surrendered to the person granted custody by a court in the United States. An applicant may, however, be eligible to receive a NIV waiver pursuant to INA 212(d)(3)(A). See 9 FAM 305.4 for more information on NIV waivers. Also see 9 FAM 202.3-3(B)(1) for more information on humanitarian parole.
9 FAM 302.12-4(E) Unavailable
9 FAM 302.12-4(E)(1) Unavailable
(CT:VISA-1150; 09-14-2020)
a. Unavailable b. Unavailable
9 FAM 302.12-4(E)(2) Unavailable
(CT:VISA-1150; 09-14-2020)
a. Unavailable b. Unavailable
9 FAM 302.12-5 (U) UNLAWFUL VOTERS - INA 212(a)(10)(D)
9 FAM 302.12-5(A) (U) Grounds
(CT:VISA-1360; 09-10-2021)
(U) INA 212(a)(10)(D) states that an applicant who has voted in violation of any Federal, State, or local constitutional provisions, statute, ordinance, or regulation is ineligible.
9 FAM 302.12-5(B) (U) Application
9 FAM 302.12-5(B)(1) (U) In General
(CT:VISA-1360; 09-10-2021)
(U) Normally, you can presume that an applicant voting in a U.S. political election did so in violation of some law or ordinance. The applicant should be provided every opportunity to prove that election regulations permitted their participation. If, however, you seek verification of those voting requirements, or if a case arises in which you have any question of this ground of ineligibility, you should submit an AO to L/CA. See 9 FAM 302.12-5(C) for more information on AOs.
9 FAM 302.12-5(B)(2) (U) Applicability
(CT:VISA-1360; 09-10-2021)
(U) Ineligibility under INA 212(a)(10)(D) applies to an applicant who at any time has voted in violation of any federal, state, or local constitutional provision, statue, ordinance, or regulation. See 22 CFR 40.104.
9 FAM 302.12-5(B)(3) (U) Admissions by the Applicant
(CT:VISA-1360; 09-10-2021)
(U) An applicant who admits voting in the United States in violation of a Federal, State, or local law, ordinance, or regulation would generally be ineligible under INA 212(a)(10)(D). See 9 FAM 302.12-5(B)(4) below for Exceptions. If the applicant admits to voting in the United States, you should make a record of the circumstances in the case notes, in the event that the applicant later refutes the statement or circumstances. If in your judgment, the applicant may refute the finding of ineligibility, you should give the applicant an opportunity to write a statement regarding the circumstances of their voting. Such details may also be necessary if an AO is requested.
9 FAM 302.12-5(B)(4) (U) Exception
(CT:VISA-1596; 08-02-2022)
(U) INA 212(a)(10)(D) does not apply to an applicant who voted in violation of any Federal, State, or local constitutional provision, statute, ordinance, or regulation if:
(1) (U) Each natural parent (or, in the case of an adopted applicant or adoptive parent) is or was a U.S. citizen by birth or naturalization;
(2) (U) The applicant resided permanently in the United States before the age of 16; and
(3) (U) The applicant reasonably believed at the time of such violation that they were a U.S. citizen.
9 FAM 302.12-5(B)(5) (U) Dual Application of INA 212(a)(6)(C)(ii)
(CT:VISA-796; 05-16-2019)
(U) You should consider whether an ineligibility under INA 212(a)(6)(C) may also apply in circumstances under INA 212(a)(10)(D), since the act of voting in the United States often involve an affirmative assertion of U.S. citizenship (see 9 FAM 302.9-5).
9 FAM 302.12-5(C) (U) Advisory Opinions
(CT:VISA-1150; 09-14-2020)
(U) An AO is not required for a potential INA 212(a)(10)(D) ineligibility; however, if you have a question about the interpretation or application of law or regulation, or you need to seek verification of voting requirements, you may request an AO from L/CA.
9 FAM 302.12-5(D) (U) Waiver
9 FAM 302.12-5(D)(1) (U) Waivers for Immigrants
(CT:VISA-1913; 02-14-2024)
(U) There is no waiver available for an IV applicant ineligible under INA 212(a)(10)(D).
9 FAM 302.12-5(D)(2) (U) Waivers for Nonimmigrants
(CT:VISA-1913; 02-14-2024)
(U) INA 212(d)(3)(A) waiver is available for an NIV applicant ineligible under INA 212(a)(10)(D). See 9 FAM 305.4-3.
9 FAM 302.12-5(E) Unavailable
9 FAM 302.12-5(E)(1) Unavailable
(CT:VISA-272; 12-20-2016)
Unavailable
9 FAM 302.12-5(E)(2) Unavailable
(CT:VISA-272; 12-20-2016)
Unavailable
9 FAM 302.12-6 (U) Former Citizens Who Renounced Citizenship to Avoid Taxation - INA 212(a)(10)(E)
9 FAM 302.12-6(A) (U) Grounds
(CT:VISA-1360; 09-10-2021)
(U) INA 212(a)(10)(E) provides that an applicant is ineligible if the applicant has officially renounced their United States citizenship to of avoid taxation by the United States.
9 FAM 302.12-6(B) (U) Application
9 FAM 302.12-6(B)(1) (U) In General
(CT:VISA-1360; 09-10-2021)
(U) INA 212(a)(10)(E) applies to any applicant who is a former citizen of the United States and who is determined by the Attorney General to have officially renounced United State Citizenship to avoid taxation by the United States that took place on or after September 30, 1996.
9 FAM 302.12-6(B)(2) (U) Your Role
(CT:VISA-1360; 09-10-2021)
(U) Your role is very limited in implementing this ground of ineligibility. Unless the applicant appears as a hit in the lookout system revealing a finding of ineligibility under INA 212(a)(10)(E), you must assume the applicant does not have an ineligibility on this ground.
9 FAM 302.12-6(C) (U) Advisory Opinions
(CT:VISA-1150; 09-14-2020)
(U) An AO is not required for a potential INA 212(a)(10)(E) ineligibility; however, if you have a question about the interpretation or application of law or regulation, you may request an AO from L/CA.
9 FAM 302.12-6(D) (U) Waiver
9 FAM 302.12-6(D)(1) (U) Waivers for Immigrants
(CT:VISA-1360; 09-10-2021)
(U) There is no waiver available for immigrants found ineligible under INA 212(a)(10)(E).
9 FAM 302.12-6(D)(2) (U) Waivers for Nonimmigrants
(CT:VISA-1596; 08-02-2022)
(U) An INA 212(d)(3)(A) waiver is available for NIV applicants ineligible under INA 212(a)(10)(E). The waiver is discretionary, and applications are evaluated on a case-by-case basis. See 9 FAM 305.4-3.
9 FAM 302.12-6(E) Unavailable
9 FAM 302.12-6(E)(1) Unavailable
(CT:VISA-272; 12-20-2016)
Unavailable
9 FAM 302.12-6(E)(2) Unavailable
(CT:VISA-272; 12-20-2016)
Unavailable