[Federal Register: May 28, 1999 (Volume 64, Number 103)]
[Rules and Regulations]
[Page 28915-28916]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28my99-10]
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DEPARTMENT OF STATE
22 CFR Parts 41 and 42
[Public Notice 3048]
Visas: Documentation of Nonimmigrants--Passport and Visa Waivers;
Deletion of Obsolete Visa Procedures and Other Minor Corrections
AGENCY: Bureau of Consular Affairs, Department of State.
ACTION: Final Rule.
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SUMMARY: This rule revises the Department's regulations regarding the
waiver of the passport and nonimmigrant visa requirement for aliens
applying for entry to the United States in an unforeseen emergency.
This revision is necessary to make clear that the passport and/or visa
are required but, in cases of unforeseen emergency, the alien may apply
for a waiver.
This rule also removes the Department's regulation regarding the
transfer of nonimmigrant visas in light of the Department's decision to
treat a request for the transfer of a visa to a new travel document as
an application for a new visa.
Finally, this rule corrects an existing regulation relating to
aliens traveling with extended-validity immigrant visas to make clear
that a consular officer need reinterview only aliens who intend to
enter the United States more than six months after the date of visa
issuance.
EFFECTIVE DATE: May 28, 1999.
FOR FURTHER INFORMATION CONTACT: H. Edward Odom, Chief, Legislation and
Regulations Division, Visa Services, (202) 663-1204.
SUPPLEMENTARY INFORMATION:
Waiver of Passport and Visa
The Department's regulation at 22 CFR 41.2(j), as currently worded,
incorrectly implies that a passport and visa are not required where an
alien is applying for admission in cases of unforeseen emergency. In
fact, INA 212(a)(7)(B)(i) does require a passport and visa, however,
INA 212(d)(4) provides for a waiver of this requirement in certain
specified circumstances. Under the provisions of INA 212(d)(4), the
Attorney General and the Secretary of State, acting jointly, may waive
the passport and/or visa requirements of INA 212(a)(7)(B)(i) on the
basis of an unforeseen emergency. On January 11, 1994 [59 FR 1473], the
Department of State published a rule that authorized the district
director of the Immigration and Naturalization Service to exercise the
Department of State's function with respect to the passport and visa
waiver under the provisions of INA 212(d)(4)(A). The Department makes
clear in this rule that only if the alien applies for and is granted
such a waiver by the INS district director may an alien be admitted to
the United States without a passport and/or visa.
Transfer of Nonimmigrant Visas
The Department's regulation at 22 CFR 41.114 addresses the transfer
of a valid nonimmigrant visa from one travel document to another. In
accordance with this regulation, the consular officer could transfer a
visa without fee to a different travel document if the visa remained
valid and the consular officer determined that the applicant remained
eligible. In fact, such cases are technically reapplications since
consular officers readjudicate the case to determine the alien's
eligibility to receive a visa and, if the alien is eligible, issue an
entirely new visa. It is appropriate for the Department to charge a
processing fee for such readjudication, as well as any applicable
reciprocity fee. The Department, therefore, is removing the regulation
concerning transfer of visas. Applicants who do not wish to apply for
new visas, may travel with their old, but still valid visas, and a
valid passport.
Extended Visa Validity
On May 21, 1997 [62 FR 27693], the Department amended 42.72(e)(4)
to reflect the new immigrant visa validity of 6 months. In updating
this regulation, the addition of the word ``no'' unintentionally
changed the meaning of this regulation which, as amended, implied that
an alien must appear for a second interview before traveling to the
United States even if the alien is traveling within the six-month visa
validity. This was not the Department's intent. This rule corrects this
error.
Regulatory Analysis and Notices
Final Rule
The Department is publishing this rule as a final rule under the
``good cause'' exceptions set forth at 5 U.S.C. 553(b)(3) and
553(d)(3). The clarification of the waiver requirement is necessary to
conform to the INS regulation and practice. The abolition of
transferred visas reflects the costs of processing a machine-readable
visa for the new document, and the law now requires a fee for such
service. The clarification of the period before a second visa interview
is required benefits the applicant.
[[Page 28916]]
The Regulatory Flexibility Act
Pursuant to section 605 of the Regulatory Flexibility Act, the
Department has assessed the potential impact of this rule, and the
Assistant Secretary for Consular Affairs hereby certifies that it is
not expected to have a significant economic impact on a substantial
number of small entities.
E.O. 12988 and E.O. 12866
The Department has reviewed this rule as required under E.O. 12998
and determined it to be in compliance therewith. This rule is exempt
from review under E.O. 12866, but the Department has reviewed the rule
internally to ensure consistency therewith. The rule does not directly
or indirectly affect states or local governments or Federal
relationships and does not create unfunded mandates.
5 U.S.C. Chapter 8
As required by 5 U.S.C., chapter 8, the Department has screened
this rule and determined that it is not a major rule, as defined in 5
U.S.C. 80412.
Paperwork Reduction Act
This rule imposes no paperwork requirements.
List of Subjects in 22 CFR Parts 41 and 42
Aliens, Immigrants, Nonimmigrants, Passports and visas, Waivers.
In view of the foregoing, the Department amends 22 CFR parts 41 and
42 as follows:
PART 41--[AMENDED]
1. The authority citation for part 41 continues to read as follows:
Authority: 8 U.S.C. 1104.
2. Amend Sec. 41.2 to revise paragraph (j) to read as follows:
Sec. 41.2 Waiver by Secretary of State and Attorney General of
passport and/or visa requirements for certain categories of
nonimmigrants.
* * * * *
(j) Except as provided in paragraphs (a) through (i) and (k)
through (m) of this section, all aliens are required to present a
valid, unexpired visa and passport upon arrival in the United States.
An alien may apply for a waiver of the visa and passport requirement
if, either prior to the alien's embarkation abroad or upon arrival at a
port of entry, the responsible district director of the Immigration and
Naturalization Service (INS) in charge of the port of entry concludes
that the alien is unable to present the required documents because of
an unforeseen emergency. The INS district director may grant a waiver
of the visa or passport requirement pursuant to INA 212(d)(4)(A),
without the prior concurrence of the Department of State, if the
district director concludes that the alien's claim of emergency
circumstances is legitimate and that approval of the waiver would be
appropriate under all of the attendant facts and circumstances.
* * * * *
Sec. 41.114 [Removed]
3. Remove Sec. 41.114.
PART 42--[AMENDED]
4. The authority citation for part 42 continues to read as follows:
Authority: 8 U.S.C. 1104.
Sec. 42.72 [Amended]
5. Amend Sec. 42.72, paragraph (e)(4) by deleting the word ``no''
in the first sentence.
Dated: April 30, 1999.
Mary A. Ryan,
Assistant Secretary for Consular Affairs.
[FR Doc. 99-13537 Filed
5-27-99; 8:45 am]