80 FR 69588 - Visas: Interview Waiver Authority

DEPARTMENT OF STATE

Federal Register Volume 80, Issue 217 (November 10, 2015)

This rule is promulgated to clarify the circumstances in which a consular officer and the Deputy Assistant Secretary for Visa Services may waive the requirement for a nonimmigrant visa interview.

[Federal Register Volume 80, Number 217 (Tuesday, November 10, 2015)]
[Rules and Regulations]
[Pages 69588-69589]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-28578]


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DEPARTMENT OF STATE

22 CFR Part 41

[Public Notice: 9343]
RIN 1400-AD80


Visas: Interview Waiver Authority

AGENCY: State Department.

ACTION: Final rule.

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SUMMARY: This rule is promulgated to clarify the circumstances in which 
a consular officer and the Deputy Assistant Secretary for Visa Services 
may waive the requirement for a nonimmigrant visa interview.

DATES: This rule is effective November 10, 2015.

FOR FURTHER INFORMATION CONTACT: Lauren A. Boquin, Legislation and 
Regulations Division, Visa Services, Bureau of Consular Affairs, 
Department of State, 600 19th St. NW., Washington, DC 20006, (202) 485-
7638.

SUPPLEMENTARY INFORMATION:

Why is the Department promulgating this rule?

    The Immigration and Nationality Act (INA), at section 222(h), sets 
out detailed requirements for in-person interviews of applicants for 
nonimmigrant visas. This rule amends 22 CFR 41.102 to be consistent 
with INA 222(h). It is also amended to reflect delegation of the 
Secretary of State's authority under INA section 222(h)(1)(C)(ii) to 
waive visa interviews upon a determination that a waiver is necessary 
as a result of unusual or emergent circumstances. In a delegation of 
authority dated August 20, 2012 (77 FR 52379), the Secretary authorized 
the Assistant Secretary for Consular Affairs to waive in-person visa 
interviews under such circumstances, which would include humanitarian 
crises or medical emergencies. The delegation also included authority 
to re-delegate, and the authority was re-delegated to the Deputy 
Assistant Secretary for Visa Services.
    Paragraph (b) of section 41.102 is amended to add Taipei Economic 
and Cultural Representative Office (TECRO) nonimmigrants classifiable 
as E-1 visa holders, since such nonimmigrants are equivalent to 
diplomatic or official visa holders. Paragraph (c) was inserted to 
reflect the Secretary's undelegated authority to waive the personal 
appearance requirement in the national interest. The amended paragraph 
(d) of this regulation reflects the full scope of the Deputy Assistant 
Secretary for Visa Services' waiver authority, consistent with the 
above-referenced delegations. Paragraph (e) revised the prior paragraph 
(d) to reflect the revised structure of the regulation and to be 
consistent with the authority in INA 222(h) on overcoming prior 
refusals.

Regulatory Findings

Administrative Procedure Act

    This regulation involves a foreign affairs function of the United 
States and, therefore, in accordance with 5 U.S.C. 553(a)(1), is exempt 
from the requirements of 5 U.S.C. 553. In addition, since this 
rulemaking relates to rules of Department organization, procedure, or 
practice, it is exempt from notice-and-comment rulemaking in accordance 
with 5 U.S.C. 553(b). Finally, since this rulemaking is exempt from 
section 553, the provisions of 5 U.S.C. 553(d) do not apply, and this 
rulemaking is effective immediately.

Regulatory Flexibility Act/Executive Order 13272: Small Business

    Because this final rule is exempt from notice-and-comment 
rulemaking under 5 U.S.C. 553, it is exempt from the Regulatory 
Flexibility Act (5 U.S.C. 603 and 604). Nonetheless, consistent with 
the Regulatory Flexibility Act (5 U.S.C. 605(b)), the Department 
certifies that this rule will not have a significant economic impact on 
a substantial number of small entities.

Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (codified at 2 U.S.C. 
1532) generally requires agencies to prepare a statement before 
proposing any rule that may result in an annual expenditure of $100 
million or more by State, local, or tribal governments, or by the 
private sector. This rule will not result in any such expenditure, nor 
will it significantly or uniquely affect small governments.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by 5 U.S.C. 804. The 
Department is aware of no monetary effect on the economy that will 
result from this rulemaking.

[[Page 69589]]

Executive Orders 12866 and 13563

    The Department of State has reviewed this rule to ensure its 
consistency with the regulatory philosophy and principles set forth in 
Executive Order 12866, and has determined that the benefits of this 
regulation outweigh any cost. The Department has considered this rule 
in light of Executive Order 13563 and affirms that this regulation is 
consistent with the guidance therein. The Department does not consider 
this rule to be a significant rulemaking action.

Executive Orders 12372 and 13132: Federalism

    This regulation will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or the distribution of power and responsibilities among the 
various levels of government. The rule will not have federalism 
implications warranting the application of Executive Orders 12372 and 
13132.

Executive Order 12988: Civil Justice Reform

    The Department has reviewed the regulation in light of sections 
3(a) and 3(b)(2) of Executive Order 12988 to eliminate ambiguity, 
minimize litigation, establish clear legal standards, and reduce 
burden.

Paperwork Reduction Act

    This rule does not impose any new information collection 
requirements under the provisions of the Paperwork Reduction Act, 44 
U.S.C. Chapter 35.

List of Subjects in 22 CFR Part 41

    Aliens, Foreign officials, Immigration, Documentation of 
nonimmigrants, Passports and visas.

    For the reasons stated in the preamble, the Department of State 
amends 22 CFR part 41 to read as follows:

PART 41--[AMENDED]

0
1. The authority citation for Part 41 is revised to read as follows:

    Authority: 22 U.S.C. 2651a; 8 U.S.C. 1104; Pub. L. 105-277, 112 
Stat. 2681-795 through 2681-801; 8 U.S.C. 1185 note (sec. 7209 of 
Pub. L. 108-458, as amended by sec. 546 of Pub. L. 109-295).


0
2. Section 41.102 is revised to read as follows:


Sec.  41.102  Personal appearance of applicant.

    (a) Except when the requirement of personal appearance has been 
waived pursuant to paragraph (b), (c), or (d) of this section, each 
applicant for a nonimmigrant visa who is at least 14 years of age and 
not more than 79 years of age must personally appear before and be 
interviewed by a consular officer, who shall determine on the basis of 
the applicant's representations, the visa application and other 
relevant documentation:
    (1) The proper nonimmigrant classification, if any, of the alien; 
and
    (2) The alien's eligibility to receive a visa.
    (b) Waivers of personal appearance by consular officers. Except as 
provided in paragraph (e) of this section or as otherwise instructed by 
the Deputy Assistant Secretary of State for Visa Services, a consular 
officer may waive the requirement of personal appearance if the 
consular officer concludes the alien presents no national security 
concerns requiring an interview and:
    (1) Is within a class of nonimmigrants classifiable under the visa 
symbols A-1, A-2, C-2, C-3 (except attendants, servants, or personal 
employees of accredited officials), G-1, G-2, G-3, G-4, NATO-1, NATO-2, 
NATO-3, NATO-4, NATO-5, NATO-6, or is a Taipei Economic and Cultural 
Representative Office (TECRO) nonimmigrant classifiable under visa 
symbol E-1, and is seeking a visa in such classification; or
    (2) Is an applicant for a diplomatic or official visa as described 
in Sec.  41.26 or Sec.  41.27 of this chapter; or
    (3) Is an applicant who is within 12 months of the expiration of 
the applicant's previously issued visa and:
    (i) Is seeking re-issuance of a nonimmigrant visa in the same 
classification;
    (ii) Is applying at the consular post of the applicant's usual 
residence; and
    (iii) Is an applicant for whom the consular officer has no 
indication of visa ineligibility or of noncompliance with U.S. 
immigration laws and regulations.
    (c) Waivers of personal appearance in the national interest. Except 
as provided in paragraph (e) of this section, the Secretary may waive 
the requirement of personal appearance of an individual applicant or a 
class of applicants if the Secretary determines that such waiver is in 
the national interest of the United States.
    (d) Waivers of personal appearance in unusual or emergent 
circumstances. Except as provided in paragraph (e) of this section, the 
Deputy Assistant Secretary for Visa Services may waive the requirement 
of personal appearance of an individual applicant or a class of 
applicants if the Deputy Assistant Secretary determines that such 
waiver is necessary as a result of unusual or emergent circumstances.
    (e) Cases in which personal appearance may not be waived. Except 
for a nonimmigrant applicant whose personal appearance is waived under 
paragraphs (b)(1), (b)(2), or (c) of this section, the personal 
appearance requirement may not be waived for:
    (1) Any nonimmigrant applicant who is not a national or resident of 
the country in which he or she is applying.
    (2) Any nonimmigrant applicant who was previously refused a visa, 
is listed in CLASS, or otherwise requires a Security Advisory Opinion, 
unless:
    (i) The visa was refused and the refusal was subsequently overcome; 
or
    (ii) The alien was found inadmissible, but the inadmissibility was 
waived.
    (3) Any nonimmigrant applicant who is from a country designated by 
the Secretary of State as a state sponsor of terrorism, regardless of 
age, or who is a member of a group or sector designated by the 
Secretary of State under section 222(h)(2)(F) of the Immigration and 
Nationality Act.

    Dated: August 17, 2015.
Michele Thoren Bond,
Assistant Secretary for Consular Affairs, Department of State.
[FR Doc. 2015-28578 Filed 11-9-15; 8:45 am]
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