[Federal Register Volume 62, Number 248 (Monday, December 29, 1997)]
[Rules and Regulations]
[Pages 67564-67568]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-33257]


-----------------------------------------------------------------------

DEPARTMENT OF STATE

Bureau of Consular Affairs

22 CFR Part 40

[Public Notice 2666]


Visas: Grounds of Ineligibility

AGENCY: Bureau of Consular Affairs, Department of State.

ACTION: Interim rule with request for comments.

-----------------------------------------------------------------------

SUMMARY: This rule implements the Illegal Immigration Reform and 
Immigrant Responsibility Act of 1996 (IIRIRA). The act adds new grounds 
of inadmissibility to the United States for: certain aliens who have 
not been inoculated against infectious diseases designated by statute 
or by the Advisory Committee for Immunization Practices (ACIP); aliens 
who have been subject to certain civil penalties; alien student visa 
abusers; aliens present in the United States without admission or 
parole; aliens who fail to attend removal proceedings; unlawful alien 
voters; and former citizens who renounced United States citizenship in 
order to avoid paying taxes. Some of the sections cited above also 
provide for waivers of a number of grounds of inadmissibility. The rule 
also incorporates into the Department's regulations a delegation of 
authority from the Immigration and Naturalization Service pertaining to 
waivers of inadmissibility under Sec. 212(a)(1)(A)(ii) of the 
Immigration and Nationality Act (INA), as amended. Finally, this rule 
makes a few miscellaneous technical corrections.

DATES: Effective Dates:

Sec. 40.11  September 30, 1996
Sec. 40.22  September 30, 1997.
Sec. 40.52  September 30, 1996
Sec. 40.61  April 1, 1997
Sec. 40.62  April 1, 1997
Sec. 40.66  September 30, 1996
Sec. 40.67  November 30, 1996
Sec. 40.91  April 1, 1997
Sec. 40.92  April 1, 1997
Sec. 40.93  April 1, 1997
Sec. 40.104  September 30, 1996
Sec. 40.105  September 30, 1996

    Comment Date: Written comments must be submitted on or before 
February 27, 1998.

ADDRESSES: Written comments may be addressed to the Chief, Legislation 
and Regulations Division, Visa Office, Room L603-C, SA-1, Washington, 
D.C. 20520-0106.

FOR FURTHER INFORMATION CONTACT: H. Edward Odom, Chief, Legislation and 
Regulations Division, (202) 663-1204.

SUPPLEMENTARY INFORMATION: Some of the provisions of IIRIRA implemented 
by this rule became effective on the date of enactment, September 30, 
1996. Others became effective on November 30, 1996. Still others became 
effective on April 1, 1997. Therefore, in order to coincide with the 
effective dates mandated by Congress, the effective dates are listed in 
the DATES section of this document. Division ``C'' of the Omnibus 
Consolidated Appropriations Act, 1997 (the Illegal Immigration Reform 
and Alien Responsibility Act of 1996 (IIRIRA)), made substantial 
changes and additions to the INA affecting numerous regulations at 22 
CFR, Subchapter E. On November 21, 1996, the Department published a 
final rule [61 FR 59182] to restructure the numbering of 22 CFR Part 40 
in light of these additions. This rule incorporates changes to those 
sections of Part 40 shown in the table below.

------------------------------------------------------------------------
                                                         IIRIRA Section 
     22 CFR Part Affected               Heading                No.      
------------------------------------------------------------------------
Sec.  40.11...................  Medical Grounds of      Sec.  341       
                                 Ineligibility.                         
Sec.  40.22(b)................  Suspended Sentences...  Sec.  322       
Sec.  40.52...................  Unqualified Physicians  N/A (typographic
                                                         correction)    
Sec.  40.61...................  Aliens Present Without  Sec.  301       
                                 Admission or Parole.                   

[[Page 67565]]

                                                                        
Sec.  40.62...................  Failure to Attend       Sec.  301       
                                 Removal Proceedings.                   
Sec.  40.66...................  Aliens Subject of       Sec.  345       
                                 Civil Penalty.                         
Sec.  40.67...................  Student Visa Abusers..  Sec.  346       
Sec.  40.91...................  Certain Aliens          Sec.  301       
                                 Previously Removed.                    
Sec.  40.92...................  Aliens Unlawfully       Sec.  301       
                                 Present.                               
Sec.  40.93...................  Aliens Unlawfully       Sec.  301       
                                 Present After                          
                                 Previous Immigration                   
                                 Violations.                            
Sec.  40.104..................  Unlawful Voters.......  Sec.  347       
Sec.  40.105..................  Former Citizens Who     Sec.  352       
                                 Renounced Citizenship                  
                                 to Avoid Taxation.                     
------------------------------------------------------------------------

22 CFR 40.11--Medical Grounds of Ineligibility

    Section 341 of the Illegal Immigration Reform and Immigrant 
Responsibility Act of 1996 amended the medical grounds of visa 
ineligibility under INA 212(a)(1)(A) to render inadmissible under INA 
212(a)(1)(A)(ii) all applicants for immigrant visas and adjustment of 
status who fail to present documentation showing that they have been 
vaccinated against a broad range of vaccine-preventable diseases. The 
amendments to INA 212(a)(1)(A) by section 341 of IIRIRA became 
effective on the date of enactment, September 30, 1996. The diseases, 
as specifically identified in the statute are: mumps, measles, rubella, 
polio, tetanus and diphtheria toxoids, pertussis, influenza type B and 
hepatitis B ``and any other diseases which are designated by the 
Advisory Committee for Immunization Practices (ACIP).'' Section 341 of 
IIRIRA also prescribed new waiver provisions at INA 212(g)(2) for 
aliens: (1) who were initially missing required vaccinations but who 
subsequently obtained them; or (2) for whom one or more of the required 
vaccinations would be medically inappropriate as certified by the 
reviewing civil surgeon or panel physician in accordance with 
regulations established by the Department of Health and Human Services; 
or (3) who establish to the satisfaction of the Attorney General that 
compliance with the vaccination requirements under INA 212(a)(1)(A)(ii) 
would be contrary to the alien's religious beliefs or moral 
convictions. In its conference report, Congress indicated that the 
waiver authority of INA 212(g)(2) should be exercised in appropriate 
cases to permit admission where, for example: (1) the alien is unable 
to receive a safe dosage of a particular vaccine; (2) it is certified 
that the vaccine is unavailable in the alien's country of nationality; 
(3) an alien child undergoing a vaccination series over a given course 
of time has not had a reasonable opportunity to complete the required 
series; or (4) the alien is an active member of a religious faith that 
has notified the Attorney General that such vaccination(s) would 
contradict the fundamental tenets of the alien's religion.
    The Department of State and the Immigration and Naturalization 
Service (INS) anticipate that large numbers of immigrant visa 
applicants will be rendered ineligible for visa issuance under the 
provisions of INA 212(a)(1)(A)(ii) but will routinely be eligible for 
waivers either because they initially did not have a required 
vaccination, but subsequently obtained it, or because the panel 
physician certified, in compliance with the HHS regulations, that a 
particular vaccination ``would not be medically appropriate.'' To 
minimize the administrative burden on INS and State, section 40.11(c) 
of this rule incorporates into the Department's regulations INS's 
delegation to consular officers of the authority to grant waivers of 
inadmissibility under INA 212(g)(2)(A) and (B). Under this delegation 
by INS, no waiver application (currently INS Form I-601) or fee is 
required, and consular officers may grant waivers under INA 
212(g)(2)(A) and (B) without consulting with INS beforehand. INS has 
not delegated the authority to grant waivers under 212(g)(2)(C) for 
religious/moral reasons, however. Consistent with the statute, these 
waiver requests will be processed by INS on a case-by-case basis 
pursuant to regulations published by the Attorney General.

22 CFR 40.22--Suspended Sentences

    Section 322 of IIRIRA amended section 101(a) of the INA by adding 
new paragraph 101(a)(48) which defines ``conviction'' and ``term of 
imprisonment.'' The new language of INA 101(a)(48)(B) is applicable to 
convictions and sentences at any time and directs that ``any reference 
to a term of imprisonment or a sentence with respect to an offense is 
deemed to include the period of incarceration or confinement ordered by 
a court of law regardless of any suspension of the imposition or 
execution of that imprisonment or sentence in whole or part.'' Under 
United States criminal law, courts may either impose a sentence or 
suspend imposition of the sentence. In Matter of Castro, 19 I&N Dec. 
692 (BIA 1988), the Board of Immigration Appeals held that, when the 
imposition of a sentence is suspended no sentence has actually been 
imposed. This decision was codified at 22 CFR 40.22(b), but has now 
been effectively reversed by new INA paragraph 101(a)(48). Accordingly, 
the regulation at 22 CFR 40.22(b) is being removed, and 22 CFR 
40.22(c), (d), (e), and (f) are being redesignated (b), (c), (d), and 
(e), respectively.

22 CFR 40.52--Unqualified Physicians

    A technical correction is made to 22 CFR 40.52 changing the 
incorrect reference cite ``INA 203(a)(2) and (3)'' to read ``INA 
203(b)(2) and (3).''

22 CFR 40.61--Aliens Present Without Admission or Parole

    Section 301(a), (b), and (d) of IIRIRA replaced the terms ``entry'' 
and ``excludable'' with ``admission'' and ``inadmissibility'' (see INA 
101(a)(13) and 212(a)(6)(A) and (B)), and replaced the term 
``deportation'' with ``removal'' (see INA 212(a)(9)).
    Section 301(c) of IIRIRA essentially moved the former provisions of 
INA 212(a)(6)(A) and (B) to a new subparagraph (9)(A), and modified 
them by substituting new provisions relating to admissions at INA 
subparagraphs 212(a)(6)(A) and (B). The first of these, INA 
212(a)(6)(A), makes inadmissible an alien who is in the United States 
without having been admitted or paroled or who has come into this 
country at a place other than a designated port of entry. This 
provision is written in the present tense and is designed to make the 
aliens described therein subject to grounds of inadmissibility rather 
than grounds of deportation. INA 212(a)(6)(A) applies only to aliens 
who are present in the United States. Thus, in the absence of an order 
of removal, it has no direct effect on the eligibility for a visa of an 
alien at a consular post and the regulation being added at 22 CFR 40.61 
so states.

[[Page 67566]]

22 CFR 40.62--Failure To Attend Removal Proceedings

    New INA 212(a)(6)(B) provides that an alien who, without reasonable 
cause, fails or refuses to attend or remain in attendance at removal 
proceedings shall be inadmissible for five years following departure or 
removal. Such an alien is thus also ineligible for a visa for that 
period of time. This ground of inadmissibility is being applied only to 
those aliens placed in removal proceedings on or after April 1, 1997, 
as set forth in INA 240, which was added by section 304(a) of IIRIRA.
    Regulations pertaining to revised INA 212(a)(6) are being added to 
22 CFR 40.61 and 40.62.

22 CFR 40.66--Subject of Civil Penalty

    The Immigration Act of 1990, Pub. L. 101-649, added as a new ground 
of visa ineligibility, INA 212(a)(6)(F) rendering inadmissible any 
alien who is the subject of a final removal order for violating INA 
274C relating to civil penalties for document fraud. INA 274C provides 
civil penalties for persons determined by an administrative law judge 
to have been involved in virtually any activity involving forged, 
altered or stolen documents used to meet a requirement or obtain a 
benefit under the INA. Section 345 of IIRIRA amended INA 212(a)(6)(F) 
by designating this ground of inadmissibility as subsection (F)(i) and 
creating a new subsection (F)(ii) providing for waivers of (F)(i) 
inadmissibilities under new INA 212(d)(12). (Waivers of the INA 
212(a)(6)(F) (now (F)(i)) ground of inadmissibility were not available 
prior to the enactment of IIRIRA). Under INA 212(d)(12), the Attorney 
General may waive this ineligibility for certain permanent residents 
who have temporarily proceeded abroad voluntarily and not under an 
order of deportation or removal and are otherwise admissible to the 
United States as returning residents, and for aliens seeking admission 
or adjustment as immediate relatives or family-based beneficiaries, if 
the offense was committed solely to assist the alien's spouse or child 
and no previous civil money penalty was imposed against the alien under 
INA section 274C. The Department is, therefore, adding new regulations 
at 22 CFR 40.66 with respect to this new ground of inadmissibility and 
to provide for the above waiver.

22 CFR 40.67--Student Visa Abusers

    Section 346 of IIRIRA added a new ground of inadmissibility for 
foreign student visa abusers. Under this ground, an alien having F-1 
status as a student under INA 101(a)(15)(F)(i) who violates the 
provisions of INA 214(l) is inadmissible until he or she has been 
outside the United States for five continuous years after the date of 
violation. INA 214(l) became effective November 30, 1996, and applies 
only to aliens who initially obtain F-1 status on or after that date, 
or whose F-1 status is extended on or after that date. Under the 
provisions of INA 214(l), alien students may not be granted F-1 student 
status to attend a public elementary school or a publicly funded adult 
education program. Alien students may attend a public secondary school 
for no more than one year in F-1 classification and must reimburse the 
school system for the full, unsubsidized per capita cost of their 
education. Alien students may transfer from a private school to a 
public secondary school only if they meet the above payment 
requirements and can demonstrate that they will not exceed the one-year 
time limitation established for public secondary school attendance. 
However, INA 214(l) prohibits foreign students in F-1 status who are 
attending private schools from transferring into public elementary 
schools or publicly funded adult education programs (including language 
programs). The Department is, therefore, adding a new regulation at 22 
CFR 40.67 to provide for the new ground of inadmissibility.

22 CFR 40.91--Certain Aliens Previously Removed

    The provisions of INA 212(a)(9) were redesignated INA 212(a)(10) 
under IIRIRA 301(b). These regulations, formerly found at 22 CFR 40.91, 
40.92 and 40.93, were redesignated as 40.101, 40.102 and 40.103 in the 
Department publication of November 21, 1996 [61 FR 59182]. The new 
provisions of INA 212(a)(9) (similar to the former INA 212(a)(6)(A) and 
(B)) were inserted as subparagraphs 212(a)(9)(A)(i) and (ii). The only 
substantive difference between the new INA 212(a)(9)(A) and the former 
INA 212(a)(6)(A) and (B) lies in the varying lengths of 
inadmissibility. The prior INA 212(a)(6)(A) provided for a one-year 
visa ineligibility period for an alien who had previously been excluded 
and deported. INA 212(a)(9)(A)(i) makes ineligible and inadmissible for 
5 years an alien who has been found inadmissible and ordered removed, 
whether summarily at the port of entry or after removal proceedings 
under INA 240. The period of inadmissibility is 20 years after a second 
(or subsequent) removal and is permanent if the alien has been 
convicted of an aggravated felony. Similarly, the prior INA 
212(a)(6)(B) rendered an alien who had previously been deported 
ineligible for a visa for 5 years (or 20 if the alien had been 
convicted of an aggravated felony), whereas in the new INA 
212(a)(9)(A)(ii), the inadmissibility periods are 10 years following 
the first removal, 20 years after a second (or subsequent) removal, and 
permanently if the alien has been convicted of an aggravated felony. 
Either clause becomes inapplicable if prior to the alien's embarkation 
at a place outside the United States the Attorney General (in advance) 
grants the alien permission to reapply for admission. Regulations 
pertaining to the prior provisions of INA 212(a)(6), with appropriate 
amendments, have been moved to 22 CFR 40.91. The redesignated 22 CFR 
40.91 contains the revised regulations implementing these changes.

22 CFR 40.92--Aliens Unlawfully Present

    New INA 212(a)(9)(B)(i)(I) bars for three years after departure an 
alien who was ``unlawfully present'' in the United States (as defined 
in (B)(ii)) for a period of more than 180 days but less than one year, 
provided the alien departed voluntarily before the commencement of 
removal proceedings. Subparagraph (9)(B)(iv) provides for the 
``tolling'' (suspension) of up to 120 days in the calculation of an 
alien's ``unlawful presence'' if: (1) the alien had been lawfully 
admitted or paroled and subsequently filed a nonfrivolous application 
for a change or extension of status before the end of the authorized 
period of stay (but became an overstay while the application was being 
adjudicated) and, (2) had not worked without authorization.
    If the alien was in the United States unlawfully for one year or 
more as described at INA 212(a)(9)(B)(i)(II), the inadmissibility 
period is ten years. The new regulation at 22 CFR 40.92 provides for 
visa ineligibility under (9)(B)(i) for three years or ten years, as 
appropriate, and notes the possibility for a waiver under (9)(B)(v) for 
an immigrant applicant if the Attorney General finds that the refusal 
of admission would result in extreme hardship to the United States 
citizen (or lawful permanent resident) spouse or parent of such alien.
    INA 212(a)(9)(B) does not contain a provision comparable to that in 
INA 212(a)(9)(A) for the Attorney General to consent to the alien's 
reapplying prior to the expiration of the time frames described 
therein. There are, however, exceptions to the provisions of INA 
212(a)(9)(B)(i) for minors, asylees, the beneficiaries of family unity 
protection, and battered spouses and children who can establish there 
was a substantial

[[Page 67567]]

connection between their status violation and the abuse.
    The definition of ``unlawfully present'' under INA 212(a)(9)(B)(ii) 
includes both remaining in the United States beyond the period of 
authorized stay and having entered the United States without being 
admitted or paroled.

22 CFR 40.93--Aliens Unlawfully Present After Previous Immigration 
Violation

    INA subparagraph 212(a)(9)(C)(i)(I) renders inadmissible any alien 
who has been in the United States unlawfully for an aggregate period of 
more than 1 year and who subsequently enters or attempts to enter 
without being admitted (i.e., without lawfully entering after 
inspection and authorization [see INA 101(a)(13)]). INA 
212(a)(9)(C)(i)(II) renders inadmissible any alien who has been ordered 
removed under INA 235(b)(1), 240, or any other provision of law, and 
who enters or attempts to enter the United States without being 
admitted. INA 212(a)(9)(C)(ii) grants an exception to the (otherwise) 
permanent inadmissibility for an alien who, at least ten years after 
departure and prior to embarking for the United States, obtains the 
Attorney General's consent to reapply for admission. A new regulation 
is established at 22 CFR 40.93 pertaining to aliens removed as a result 
of unlawful entry (or attempted entry) following such prior immigration 
violation or removal order.
    The amendments to INA 212(a)(6)(A) and (B) and 212(a)(9) described 
above went into effect on April 1, 1997.

22 CFR 40.104--Unlawful Voters

    Section 347 of IIRIRA created a new ground of visa ineligibility 
(INA 212(a)(10)(D)) for any alien who has voted in violation of any 
Federal, State or local constitutional provision, statute, ordinance, 
or regulation. It applies to aliens voting before, on, or after 
September 30, 1996. The Department is providing new regulations at 22 
CFR 40.104 to comport with this addition.

22 CFR 40.105--Former Citizens Who Renounced Citizenship To Avoid 
Taxation

    Section 352(a) of IIRIRA amended the INA to add a new ground of 
ineligibility at INA 212(a)(10)(E), which renders ineligible for a visa 
any alien who has been determined by the Attorney General to have 
renounced United States citizenship to avoid taxation by the United 
States. This is effective for renunciations on or after September 30, 
1996, the effective date of IIRIRA. New regulations are added at 22 CFR 
40.105.

Interim rule

    This rule modifies 22 CFR, Subchapter E, Subparts B, C, F, G and J, 
to reflect changes made by Division ``C'' of Pub. L. 104-208, the 
illegal Immigration Reform and Immigrant Responsibility Act of 1996 
(IIRIRA). The implementation of this rule as an interim rule, with 
provisions for post-promulgation public comments, is based upon the 
``good cause'' exception found at 5 U.S.C. 553(b)(B) and 553(d)(3) 
because it implements statutory provisions already in effect. Some of 
the provisions of IIRIRA implemented by this rule became effective on 
the date of enactment, September 30, 1996. Another became effective on 
November 30, 1996. Still others became effective on April 1, 1997. 
Therefore, the provisions of this interim rule were effective on 
September 30, 1996, except that Sec. 40.67 became effective November 
30, 1996 and Secs. 40.61, 40.62, 40.91, 40.92, and 40.93 were effective 
on April 1, 1997, to coincide with the dates mandated by Congress.
    Pursuant to Sec. 605(b) of the Regulatory Flexibility Act, this 
rule will not have a significant economic impact on a substantial 
number of small entities because it merely implements statutory 
requirements already in effect. This rule imposes no reporting or 
record-keeping action on the public requiring the approval of the 
Office of Management and Budget under the Paperwork Reduction Act. This 
rule has been reviewed as required by E.O. 12988 and is certified to 
meet the applicable regulatory standards it describes. Although 
exempted from E.O. 12866, this rule has been reviewed to ensure 
consistency with it.

List of Subjects in 22 CFR Part 40

    Aliens, Immigrants, Immigration, Nonimmigrants, Passports and 
visas.
    In view of the foregoing, 22 CFR is amended as follows:

PART 40--[AMENDED]

    1. The authority citation for Part 40 is amended to read as 
follows:

    Authority: 8 U.S.C. 1104; Pub. L. 104-208, 110 Stat. 3009; 22 
U.S.C. 26512.

    2. Section 40.11 is amended by revising paragraph (b) and adding 
paragraph (c) to read as follows:


Sec. 40.11  Medical grounds of ineligibility.

* * * * *
    (b) Waiver of ineligibility--INA 212(g). If an immigrant visa 
applicant is inadmissible under INA 212(a)(1)(A)(i), (ii), or (iii) but 
is qualified to seek the benefits of INA 212(g)(1)(A) or (B), 
212(g)(2)(C), or 212(g)(3), the consular officer shall inform the alien 
of the procedure for applying to INS for relief under the applicable 
provision of law. A visa may not be issued to the alien until the 
consular officer has received notification from INS of the approval of 
the alien's application under INA 212(g), unless the consular officer 
has been delegated authority by the Attorney General to grant the 
particular waiver under INA 212(g).
    (c) Waiver authority--INA 212(g)(2)(A) and (B). The consular 
officer may waive section 212(a)(1)(A)(ii) visa ineligibility if the 
alien qualifies for such waiver under the provisions of INA 
212(g)(2)(A) or (B).


Sec. 40.22  Multiple criminal convictions.

    3. Section 40.22 is revised by removing paragraph (b) and 
redesignating paragraphs (c), (d), (e) and (f) as (b), (c), (d) and 
(e), respectively.


Sec. 40.52  Unqualified physicians.

    4. Section 40.52 is amended by revising ``203(a)(2) or (3)'' to 
read ``203(b)(2) or (3).''
    5. Section 40.61 is revised to read as follows:


Sec. 40.61  Aliens present without admission or parole.

    INA 212(a)(6)(A)(i) does not apply at the time of visa issuance.
    6. Section 40.62 is revised to read as follows:


Sec. 40.62  Failure to attend removal proceedings.

    An alien who without reasonable cause failed to attend, or to 
remain in attendance at, a hearing initiated on or after April 1, 1997, 
under INA 240 to determine inadmissibility or deportability shall be 
ineligible for a visa under INA 212(a)(6)(B) for five years following 
the alien's subsequent departure or removal from the United States.
    7. Section 40.66 is revised to read as follows:


Sec. 40.66  Subject of civil penalty.

    (a) General. An alien who is the subject of a final order imposing 
a civil penalty for a violation under INA 274C shall be ineligible for 
a visa under INA 212(a)(6)(F).
    (b) Waiver of ineligibility. If an applicant is ineligible under 
paragraph (a) of this section but appears to the consular officer to 
meet the prerequisites for seeking the benefits of INA 212(d)(12), the 
consular officer shall inform the alien of the procedure for applying 
to INS for relief under that provision of law. A visa may not be issued 
to the alien until the consular officer has received notification from

[[Page 67568]]

INS of the approval of the alien's application under INA 212(d)(12).
    8. Section 40.67 is added to read as follows:


Sec. 40.67  Student visa abusers.

    An alien ineligible under the provisions of INA 212(a)(6)(G) shall 
not be issued a visa unless the alien has complied with the time 
limitation set forth therein.
    9. Section 40.91 is revised to read as follows:


Sec. 40.91  Certain aliens previously removed.

    (a) 5-year bar. An alien who has been found inadmissible, whether 
as a result of a summary determination of inadmissibility at the port 
of entry under INA 235(b)(1) or of a finding of inadmissibility 
resulting from proceedings under INA 240 initiated upon the alien's 
arrival in the United States, shall be ineligible for a visa under INA 
212(a)(9)(A)(i) for 5 years following removal from the United States if 
prior to the alien's reembarkation at a place outside the United States 
that is the alien's first such removal.
    (b) 10-year bar. An alien who has otherwise been removed from the 
United States under any provision of law, or who departed while an 
order of removal was in effect, is ineligible for a visa under INA 
212(a)(9)(A)(ii) for 10 years following such removal or departure from 
the United States.
    (c) 20-year bar. An alien who has been removed from the United 
States two or more times shall be ineligible for a visa under INA 
212(a)(9)(A)(i) or INA 212(a)(9)(A)(ii), as appropriate, for 20 years 
following the most recent such removal or departure.
    (d) Permanent bar. If an alien who has been removed has also been 
convicted of an aggravated felony, the alien is permanently ineligible 
for a visa under INA 212(a)(9)(A)(i) or 212(a)(9)(A)(ii), as 
appropriate.
    (e) Exceptions. An alien shall not be ineligible for a visa under 
INA 212(a)(9)(A)(i) or (ii) if the Attorney General has consented to 
the alien's application for admission.
    10. Section 40.92 is revised to read as follows:


Sec. 40.92  Aliens unlawfully present.

    (a) 3-year bar. An alien described in INA 212(a)(9)(B)(i)(I) shall 
be ineligible for a visa for 3 years following departure from the 
United States.
    (b) 10-year bar. An alien described in INA 212(a)(9)(B)(i)(II) 
shall be ineligible for a visa for 10 years following departure from 
the United States.
    (c) Waiver. If a visa applicant is inadmissible under paragraph (a) 
or (b) of this section but appears to the consular officer to meet the 
prerequisites for seeking the benefits of INA 212(a)(9)(B)(v), the 
alien shall be informed of the procedure for applying to INS for relief 
under that provision of law.
    11. Section 40.93 is revised to read as follows:


Sec. 40.93  Aliens unlawfully present after previous immigration 
violation.

    An alien described in INA 212(a)(9)(C)(i) is permanently ineligible 
for a visa unless the Attorney General consents to the alien's 
application for readmission not less than 10 years following the 
alien's last departure from the United States. Such application for 
readmission shall be made prior to the alien's reembarkation at a place 
outside the United States.
    12. Section 40.104 is revised to read as follows:


Sec. 40.104  Unlawful voters.

    An alien who at any time has voted in violation of any Federal, 
State, or local constitutional provision, statute, ordinance or 
regulation is ineligible for a visa under INA 212(a)(10)(D).
    13. Section 40.105 is revised to read as follows:


Sec. 40.105  Former citizens who renounced citizenship to avoid 
taxation.

    An alien who is a former citizen of the United States, who on or 
after September 30, 1996, has officially renounced United States 
citizenship and who has been determined by the Attorney General to have 
renounced citizenship to avoid United States taxation, is ineligible 
for a visa under INA 212(a)(10)(E).

    December 10, 1997.
Mary A. Ryan,
Assistant Secretary for Consular Affairs.
[FR Doc. 97-33257 Filed 12-24-97; 8:45 am]
BILLING CODE 4710-06-P