§ 41.11 - Entitlement to nonimmigrant status.

§ 41.11 Entitlement to nonimmigrant status.

(a) Presumption of immigrant status and burden of proof. An applicant for a nonimmigrant visa, other than an alien applying for a visa under INA 101(a)(15) (H)(i) or (L), shall be presumed to be an immigrant until the consular officer is satisfied that the alien is entitled to a nonimmigrant status described in INA 101(a)(15) or otherwise established by law or treaty. The burden of proof is upon the applicant to establish entitlement for nonimmigrant status and the type of nonimmigrant visa for which application is made.

(b) Aliens unable to establish nonimmigrant status.

(1) A nonimmigrant visa shall not be issued to an alien who has failed to overcome the presumption of immigrant status established by INA 214(b).

(2) In a borderline case in which an alien appears to be otherwise entitled to receive a visa under INA 101(a)(15)(B) or (F) but the consular officer concludes that the maintenance of the alien's status or the departure of the alien from the United States as required is not fully assured, a visa may nevertheless be issued upon the posting of a bond with the Secretary of Homeland Security under terms and conditions prescribed by the consular officer.

(c) Visa Bond Pilot Program -

(1) Summary. This paragraph (c) establishes a pilot program (Visa Bond Pilot Program) implementing section 221(g)(3) of the Immigration and Nationality Act (INA). Under the Visa Bond Pilot Program, consular officers will require a Maintenance of Status and Departure Bond (Visa Bond) be posted with the U.S. Department of Homeland Security, as a condition of visa issuance, for certain visa applicants.

(2) Visa Bond Pilot Program parameters. Under the Visa Bond Pilot Program, consular officers will require Visa Bonds be posted by visa applicants who meet the following three criteria:

(i) Apply for a B-1 and/or B-2 nonimmigrant visa;

(ii) Are nationals of one of the following countries, which had an overstay rate of ten percent or higher in Fiscal Year 2019, according to the DHS FY 2019 Overstay Report, https://www.dhs.gov/publication/entryexit-overstay-report, for B-1/B-2 visa applicants: Afghanistan, Angola, Bhutan, Burkina Faso, Burma, Burundi, Cabo Verde, Chad, Democratic Republic of the Congo (Kinshasa), Djibouti, Eritrea, the Gambia, Guinea-Bissau, Iran, Laos, Liberia, Libya, Mauritania, Papua New Guinea, Sao Tome and Principe, Sudan, Syria, and Yemen; and

(iii) Are granted a DHS waiver of inadmissibility under INA section 212(d)(3)(A) prior to visa issuance. Consular officers will set the Visa Bond amount at $5,000, $10,000, or $15,000, based on a consular officer's assessment of which amount is sufficient to ensure the alien will not remain in the United States beyond the end of the alien's authorized period of stay, while not exceeding what the alien can pay. Visas issued under the Visa Bond Pilot Program will be valid for a single entry to the United States within three months of the date of visa issuance.

(3) Bond waiver authority. The Deputy Assistant Secretary for Visa Services may waive the bond requirement, for an alien, country, or a category of aliens, if the Deputy Assistant Secretary assesses that such a waiver is not contrary to the national interest. A waiver of the bond requirement may be recommended to the Deputy Assistant Secretary for Visa Services by a consular officer where the consular officer has reason to believe the waiver would advance a national interest or humanitarian interest. There will be no procedure for visa applicants to apply for a waiver of the bond requirement. Consular officers will determine whether a waiver would advance a significant national interest or humanitarian interest based on the applicants purpose of travel and employment, as described in the visa application and during the visa interview.

(4) Bond procedures. A Visa Bond required under paragraph (c) of this section must be submitted to and approved by DHS. Upon the posting of such bond, DHS will notify the appropriate consular section overseas. Under this Visa Bond Pilot Program, Visa Bonds will be administered by U.S. Immigration and Customs Enforcement (ICE) in accordance with regulations, procedures, and instructions promulgated by DHS applicable to ICE Form I-352, Immigration Bond. A Visa Bond will be canceled when a visa holder substantially performs with respect to the terms and conditions of the Visa Bond as set forth in paragraph G(4) of Form I-352. Conversely, a Visa Bond will be breached when there has been a substantial violation of the terms and conditions set forth in paragraph G(4) of Form I-352. To demonstrate that they performed within the bond requirements, visa holders may, for example, schedule an appointment at a consular section outside the United States within 30 days of their departure from the United States and, after establishing their identity through personal appearance and presentation of a passport, provide information to a consular officer confirming they departed the United States on or before the expiration of their authorized period of stay. Upon doing so, visa holders will have substantially performed bond requirements, provided they maintained the conditions of their status while admitted to the United States. Visa holders who do not appear at a consular section still may ensure cancellation of the bond if the visa holder substantially complies with the terms and conditions of the Visa Bond as set forth in paragraph G(4) of Form I-352 and provides ICE probative documentation of timely departure, if required. Visa holders who timely file an application for extension of stay or change of status are not deemed to be in breach of bond.

(5) Appeal of bond breach determination. A determination of a breach bond may be appealed in accordance with instructions on the applicable DHS forms governing bond breach determinations and appeal rights.

(6) Effect on other law. Nothing in this paragraph (c) shall be construed as altering or affecting any other authority, process, or regulation provided by or established under any other provision of Federal law.

[52 FR 42597, Nov. 5, 1987, as amended at 61 FR 1835, Jan. 24, 1996; 85 FR 74882, Nov. 24, 2020]

Effective Date Note

Effective Date Note:

At 85 FR 74882, Nov. 24, 2020, § 41.11 was amended by adding paragraph (c), effective Dec. 24, 2020, through June 24, 2021.