Deferred Inspection Policy

The reasons for deferrals are listed below along with policies and procedures by immigration status (e.g., immigrant, legal permanent resident, nonimmigrant) and referenced to the Inspector's Field Manual (IFM), Inspectors Post Academy Training Program Manual (ITM), the Immigration and Nationality Act (INA), or the Code of Federal Regulations (CFR).

Reasons for Granting Deferred Inspections and Specific Policies and Procedures

The INA contains general provisions for deferring an inspection. According to 8 CFR § 235.2 (b), an examining immigration officer may defer the inspection if that officer has reason to believe that the alien can overcome a finding of inadmissibility by:

• posting a bond under INA § 213;

• seeking and obtaining a waiver under INA § 211 or 212(d)(3) or (4); or

• presenting additional evidence of admissibility not available at the time and place of the initial examination.

Document Deficiency (e.g., no documents, expired documents, and incorrect classification)

Legal Permanent Resident (LRP) lacking documents

An LPR arrives at an airport for inspection without documents or valid proof of immigration status. If an inspector is convinced that a returning resident is admissible (normally, because a clear record of current status exists in the Central Index System, but the subject cannot provide evidence of LPR status (i.e., Alien Registration Card), there are several actions which can be taken during the secondary inspection. Normally, the inspection may be deferred:

1. If the LPR states that he or she left the I-551, Alien Resident Card, at home and will be able to produce the requisite document within a few days, the inspector may defer the inspection per 8 CFR § 235.2.

2. If the subject's permanent alien registration has not yet been received or has been lost or stolen, the inspector is required to instruct the subject to file a Form I-90, Application for Replacement Alien Registration Receipt Card, and collect the fee. Per the IFM, Chapter 13.2, inspectors are to require the applicant to prepare the form in duplicate; they are to endorse the reverse of both copies with their admission stamp and the notation "Admitted 211(b), to file I-90." Inspectors are to collect the fee and one copy of the I-90, routing the I-90 to the alien's "A-file." Then inspectors are to note the fee block on the other I-90, "duplicate-fee previously collected," and return it to the applicant, advising him or her to obtain proper photographs and submit the application to the nearest INS office within 30 days. If photographs are available, or camera equipment is available at the port-of-entry, no duplicate application is required; inspectors are to accept and forward the single I-90 for processing.

If the inspector believes that the individual can overcome a finding of inadmissibility by presenting additional evidence or from evidence that could be determined from a review of an alien file (A-File), the individual may be deferred per 8 CFR § 235.2 and the IFM, Chapter 13.2.

In the above instances, the inspector may issue a Form I-193, Application for Waiver of Passport and/or Visa, to the LPR pursuant to INA § 211(b). If applicable, the IFM, Chapter 17.5, instructs the inspector to collect a fee for the I-193. If the individual cannot pay the application fee at that time, the payment of the I-193 application fee may be deferred.

Nonimmigrants (NI) lacking documents

A nonimmigrant arriving at a port of entry who is not in possession of a passport valid for a minimum of six months, or is not in possession of a valid nonimmigrant visa (except those countries participating in the visa waiver pilot program) at the time of application for admission, is inadmissible per INA § 212(a)(7)(B).

In the above instances, the inspector may defer the inspection if there is a belief that the individual can overcome a finding of inadmissibility per 8 CFR § 235.2. If an Application for Waiver of Passport and/or Visa, Form I-193, pursuant to INA § 211 (b) is applicable, the inspector is instructed to collect the fee per the IFM, Chapter 17.5. If the individual cannot pay the application fee at that time, the payment of the fee may be deferred.

Immigrants lacking documents

Any immigrant at the time of application for admission resulting in a change of status who is not in possession of a valid document is inadmissible under INA §212(a) (7)(A)(I)(1). A valid document includes an unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document required by the INA, and a valid unexpired passport, or other suitable travel document, or document of identity and nationality.

In the above instances, the inspector may defer the inspection if there is a belief that the individual can overcome a finding of inadmissibility per 8 CFR § 235.2. If there is some minor document problem, the individual may be deferred to provide the missing information. In such instances, inspectors may not require the filing of the Form I-193.

Abandonment of Lawful Permanent Resident Status

If a LPR is seeking admission and appears to have abandoned his or her permanent residence in the United States, the IFM Chapter 17.6 (d)(2), states that the inspection may be deferred.

1. Per the IFM, Chapter 13.1, a LPR who has been outside the U.S. for more than one year (two, if presenting a reentry permit), may have abandoned residence. The INS policy is to ask for other documentation to substantiate residence, such as driver's licenses and employer identification cards. If the LPR does not have any documentation at that time, then the inspector may defer the inspection so that the individual may subsequently present it to INS.

2. Per the ITM, inspectors are advised that if the returning LPR alleges that he/she has documentary evidence that establishes a permanent residence in the U.S., and could be furnished later, then the inspection may be deferred.

3. A LPR must be returning to an unrelinquished lawful permanent residence in the U.S. after a temporary absence abroad [8 CFR § 211.1(b)]. Per the IFM, inspectors are advised that if unforeseen circumstances cause an unavoidable delay in returning, the trip would retain its temporary character, so long as the alien intended to return as soon as his original purpose was completed. The alien must possess the requisite intention to return at the time of departure, and must maintain it during the course of the visit.

4. In the above instances, the inspector should consider issuing a Form I-193, Application for Waiver of Passport and/or Visa, and collect the fee pursuant to INA § 211(b) and Chapter 17.5 of the IFM. If the individual cannot pay the application fee at that time, the payment of the I-193 application fee may be deferred.

Non-Bonafide Nonimmigrants (suspicion of fraudulent documents, inappropriate visa)

Nonimmigrants with improper documents are generally inadmissible. If a nonimmigrant alien in possession of a business visa to work and reside in the United States, did not have a valid labor certificate per INA § 212 (a)(5)(A), the inspector may defer the inspection if the alien can present additional evidence of admissibility pursuant to 8 CFR § 235.2. The inspector may also issue a Form I-193 and collect the fee.

Criminal Aliens Who May Be Inadmissible

Any alien convicted of, or who admits to having committed acts that constitute the essential elements of a crime involving moral turpitude is inadmissible under INA § 212 (a)(2)(A)(i)(I). Additionally, any alien convicted of a violation of any law or regulation of a State, the U.S., or a foreign country relating to controlled substance is inadmissible under INA § 212 (a)(2)(A)(i)(II). Any alien convicted of two or more offenses, regardless of whether the conviction was in a single scheme of misconduct and regardless of whether the offenses involved moral turpitude, for which the aggregate sentences were 5 years or more under INA § 212 (a)(2)(B) is inadmissible.

Possible False Claim of US Citizenship

Any alien who falsely represents, or has falsely represented, himself or herself to be a citizen of the United States for any purpose or benefit under the INA or any other federal or state law is deemed removable from the U.S. per the INA § 212 (a)(6)(C)(ii). The granting of a deferred inspection is normally not an option. However, per 8 CFR § 235.2, the inspector has the discretion to defer the inspection if the inspector believes that the individual can overcome a finding of inadmissibility.

Lookout Intercepts

The granting of a deferred inspection is normally not an option when an alien is identified in the lookout system; however, there may be instances when an individual claims to be wrongfully identified as the lookout person. Federal, state, or local agencies can post lookout intercepts. Lookout postings are initiated against individuals who are inadmissible under one or more of the provisions of INA § 212 (a), as well as for individuals with outstanding warrants of arrest. If the inspector believes the individual can overcome a finding of inadmissibility by presenting additional evidence or from evidence that could be determined from a review of an alien file (A-File), the individual may be deferred per 8 CFR § 235.2.

Posting of Bonds