81 FR 12050 - Visas: Documentation of Nonimmigrants Under the Immigration and Nationality Act, as Amended
DEPARTMENT OF STATE Federal Register Volume 81, Issue 45 (March 8, 2016)
Federal Register Volume 81, Issue 45 (March 8, 2016)
| Page Range | 12050-12051 | |
| FR Document | 2016-05136 |
[Federal Register Volume 81, Number 45 (Tuesday, March 8, 2016)] [Proposed Rules] [Pages 12050-12051] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-05136] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF STATE 22 CFR Part 41 [Public Notice: 9458] RIN 1400-AD30 Visas: Documentation of Nonimmigrants Under the Immigration and Nationality Act, as Amended AGENCY: Department of State. ACTION: Notice of proposed rulemaking. ----------------------------------------------------------------------- SUMMARY: The Department of State proposes to reinstate a temporarily suspended amendment to its visa regulations to clarify procedures for waiver of documentary requirements due to an unforeseen emergency for nonimmigrants seeking admission to the United States. DATES: Comments must be received on or before May 9, 2016. ADDRESSES: Internet: You may view this proposed rule and submit your comments by visiting the Regulations.gov Web site at www.regulations.gov, and searching for docket number DOS-2016-0010. FOR FURTHER INFORMATION CONTACT: Lauren A. Boquin, Legislation and Regulations Division, Legal Affairs, Office of Visa Services, Bureau of Consular Affairs, Department of State, 600 19th St NW., Washington, DC 20006 (202) 485-7638. SUPPLEMENTARY INFORMATION: Background This rulemaking proposes to reinstate a 1999 regulatory amendment that was invalidated by court order in United Airlines, Inc. v. Brien, 588 F.3d 158 (2d Cir. 2009). Pursuant to Section 212(a)(7)(B)(i) of the Immigration and Nationality Act (INA), a nonimmigrant is inadmissible to the United States if he or she does not present an unexpired passport and valid visa at the time of application for admission. 8 U.S.C. 1182(a)(7)(B)(i). Either or both of these requirements may be waived by the Secretary of Homeland Security and the Secretary of State, acting jointly, in specified situations, as provided in INA section 212(d)(4) (8 U.S.C. 1182(d)(4)). One circumstance in which this requirement may be waived is when a nonimmigrant is unable to present a valid visa or unexpired passport due to an unforeseen emergency. In accordance with INA section 212(d)(4) (8 U.S.C. 1182(d)(4)), the Department of State and the Department of Homeland Security have consulted and are acting jointly to propose amendments to 8 CFR 212.1 and 22 CFR 41.2. Former Regulations The Department of State and the former Immigration and Naturalization Service (INS) published parallel regulations in 1994 to consolidate and simplify procedures for processing waivers of documentary requirements in cases of emergency circumstances. INS amended its regulation in 1996, preserving its authority to impose fines on carriers for transporting nonimmigrants who did not present a valid visa and passport, even in cases where the INS granted a waiver. In 1999, the Department of State published a regulation to accompany the INS amendment, also allowing the INS to fine carriers who transported individuals who later received waivers of the visa and passport requirement. In a 2009 decision, the U.S. Court of Appeals for the Second Circuit found the 1999 State Department amendment invalid as it lacked joint action and was not promulgated with a period for public notice and comment. Accordingly, the Department of State and DHS have consulted and are acting jointly to propose reinstating the amendments. Because of the court's ruling, the 1994 rule is in effect until the Department of State issues a final rule. The 1994 version of the text, which is available to the public through the Government Printing Office, stipulated that in cases of unforeseen emergencies, a visa and passport are not required of an alien 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 in charge of the port of entry concludes that the alien is unable to present the required documents because of an unforeseen emergency. The 1994 rule also stipulated that any waiver of the visa or passport requirement may be granted by the INS district director pursuant to INA 212(d)(4)(A) without the prior concurrence of the Department of State in each case in which the district director concludes that the alien's claim of emergency circumstances is legitimate and bona fide and that approval of the waiver would be appropriate under all of the attendant facts and circumstances. The Department of Homeland Security is proposing a parallel Notice of Proposed Rulemaking to amend 8 CFR 212.1(g), published in today's Federal Register. Regulatory Findings A. Administrative Procedure Act The Department is publishing this notice of proposed rulemaking with a 60-day period of notice and comment. B. Regulatory Flexibility Act/Executive Order 13272: Small Business The Department of State has reviewed this regulation and certifies that this rule will not have a significant economic impact on a substantial number of small entities. C. The Unfunded Mandates Reform Act of 1995 Section 202 of the Unfunded Mandates Reform Act of 1995, Public Law 104-4, 109 Stat. 48, 2 U.S.C. 1532, [[Page 12051]] 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. D. The Small Business Regulatory Enforcement Fairness Act of 1996 This rule is not a major rule as defined by 5 U.S.C. 804, for purposes of congressional review of agency rulemaking under the Small Business Regulatory Enforcement Fairness Act of 1996. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based companies to compete with foreign-based companies in domestic and import markets. E. Executive Order 12866 The Department of State does not assess or collect fines under INA section 273. Neither this proposed Department of State rule, nor prior versions of this regulation, address fines against carriers. However, the November 20, 2009, opinion from the United States Circuit Court of Appeals for the Second Circuit requires joint rulemaking by the Department of State and DHS for the DHS rule to take effect. United Airlines, Inc. v. Brien, 588 F.3d 158, 179 (2d Cir. 2009). For a full economic analysis of the jointly proposed DHS rule, including Regulatory Flexibility and Regulatory Impact Analyses, see the U.S. Customs and Border Protection Notice of Proposed Rulemaking for 8 CFR 212.1(g), RIN 1651-AA97. F. Executive Order 13563 The Department of State has considered this rule in light of Executive Order 13563 and affirms that this regulation is consistent with the guidance therein. G. 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. Nor will the rule have federalism implications warranting the application of Executive Orders No. 12372 and No. 13132. H. Executive Order 13175--Consultation and Coordination With Indian Tribal Governments The Department has determined that this rulemaking will not have tribal implications, will not impose substantial direct compliance costs on Indian tribal governments, and will not pre-empt tribal law. Accordingly, the requirements of section 5 of Executive Order 13175 do not apply to this rulemaking. I. Paperwork Reduction Act This rule does not impose or revise information collections subject to 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, Passports and Visas, Students Accordingly, for the reasons set forth in the preamble, the State Department proposes to amend 22 CFR part 41 as follows: PART 41 VISAS: DOCUMENTATION OF NONIMMIGRANTS UNDER THE IMMIGRATION AND NATIONALITY ACT, AS 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 (section 7209 of Pub. L. 108-458, as amended by section 546 of Pub. L. 109-295). 0 2. Section 41.2 is amended by revising paragraph (i) to read as follows: Sec. 41.2 Exemption or Waiver by Secretary of State and Secretary of Homeland Security of passport and/or visa requirements for certain categories of nonimmigrants. * * * * * (i) Individual cases of unforeseen emergencies. Except as provided in paragraphs (a) through (h) and (j) through (l) of this section, all nonimmigrants are required to present a valid, unexpired visa and passport upon arrival in the United States. A nonimmigrant may apply for a waiver of the visa and passport requirement if, either prior to the nonimmigrant's embarkation abroad or upon arrival at a port of entry, the officer in charge of the port of entry concludes that the nonimmigrant is unable to present the required documents because of an unforeseen emergency. The DHS 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 DHS district director concludes that the a nonimmigrant's claim of emergency circumstances is legitimate and that approval of the waiver would be appropriate under all of the attendant facts and circumstances. * * * * * Dated: February 24, 2016. David T. Donahue, Acting Assistant Secretary for Consular Affairs, Department of State. [FR Doc. 2016-05136 Filed 3-7-16; 8:45 am] BILLING CODE 4710-06-P
![12050 Federal Register / Vol. 81, No. 45 / Tuesday, March 8, 2016 / Proposed Rules
Commercial Airplanes Organization regulations to clarify procedures for a regulation to accompany the INS
Designation Authorization (ODA) that has waiver of documentary requirements amendment, also allowing the INS to
been authorized by the Manager, Seattle ACO due to an unforeseen emergency for fine carriers who transported
to make those findings. To be approved, the nonimmigrants seeking admission to the individuals who later received waivers
repair method, modification deviation, or
alteration deviation must meet the
United States. of the visa and passport requirement. In
certification basis of the airplane and the DATES: Comments must be received on a 2009 decision, the U.S. Court of
approval must specifically refer to this AD. or before May 9, 2016. Appeals for the Second Circuit found
(4) Except as required by paragraph (i) of ADDRESSES: Internet: You may view this the 1999 State Department amendment
this AD: For service information that proposed rule and submit your invalid as it lacked joint action and was
contains steps that are labeled as RC, the comments by visiting the not promulgated with a period for
provisions of paragraphs (j)(4)(i) and (j)(4)(ii) public notice and comment.
apply.
Regulations.gov Web site at
www.regulations.gov, and searching for Accordingly, the Department of State
(i) The steps labeled as RC, including and DHS have consulted and are acting
substeps under an RC step and any figures docket number DOS–2016–0010.
identified in an RC step, must be done to FOR FURTHER INFORMATION CONTACT:
jointly to propose reinstating the
comply with the AD. An AMOC is required Lauren A. Boquin, Legislation and amendments.
for any deviations to RC steps, including Regulations Division, Legal Affairs, Because of the court’s ruling, the 1994
substeps and identified figures. Office of Visa Services, Bureau of rule is in effect until the Department of
(ii) Steps not labeled as RC may be
Consular Affairs, Department of State, State issues a final rule. The 1994
deviated from using accepted methods in version of the text, which is available to
accordance with the operator’s maintenance 600 19th St NW., Washington, DC 20006
(202) 485–7638. the public through the Government
or inspection program without obtaining Printing Office, stipulated that in cases
approval of an AMOC, provided the RC steps, SUPPLEMENTARY INFORMATION:
of unforeseen emergencies, a visa and
including substeps and identified figures, can
still be done as specified, and the airplane Background passport are not required of an alien if,
can be put back in an airworthy condition. This rulemaking proposes to reinstate either prior to the alien’s embarkation
a 1999 regulatory amendment that was abroad or upon arrival at a port of entry,
(k) Related Information the responsible district director of the
invalidated by court order in United
(1) For more information about this AD, Immigration and Naturalization Service
contact Wayne Lockett, Aerospace Engineer, Airlines, Inc. v. Brien, 588 F.3d 158 (2d
Cir. 2009). in charge of the port of entry concludes
Airframe Branch, ANM–120S, FAA, Seattle that the alien is unable to present the
ACO, 1601 Lind Avenue SW., Renton, WA Pursuant to Section 212(a)(7)(B)(i) of
the Immigration and Nationality Act required documents because of an
98057–3356; phone: 425–917–6447; fax: 425–
917–6590; email: wayne.lockett@faa.gov. (INA), a nonimmigrant is inadmissible unforeseen emergency. The 1994 rule
(2) For service information identified in to the United States if he or she does not also stipulated that any waiver of the
this AD, contact Boeing Commercial present an unexpired passport and valid visa or passport requirement may be
Airplanes, Attention: Data & Services visa at the time of application for granted by the INS district director
Management, P. O. Box 3707, MC 2H–65, admission. 8 U.S.C. 1182(a)(7)(B)(i). pursuant to INA 212(d)(4)(A) without
Seattle, WA 98124–2207; telephone: 206– the prior concurrence of the Department
Either or both of these requirements
544–5000, extension 1; fax: 206–766–5680; of State in each case in which the
Internet: https://www.myboeingfleet.com. may be waived by the Secretary of
Homeland Security and the Secretary of district director concludes that the
You may view this referenced service alien’s claim of emergency
information at the FAA, Transport Airplane State, acting jointly, in specified
Directorate, 1601 Lind Avenue SW., Renton, situations, as provided in INA section circumstances is legitimate and bona
WA. For information on the availability of 212(d)(4) (8 U.S.C. 1182(d)(4)). One fide and that approval of the waiver
this material at the FAA, call 425–227–1221. circumstance in which this requirement would be appropriate under all of the
may be waived is when a nonimmigrant attendant facts and circumstances.
Issued in Renton, Washington, on February The Department of Homeland
is unable to present a valid visa or
29, 2016. Security is proposing a parallel Notice
unexpired passport due to an
Michael Kaszycki, of Proposed Rulemaking to amend 8
unforeseen emergency. In accordance
Acting Manager, Transport Airplane with INA section 212(d)(4) (8 U.S.C. CFR 212.1(g), published in today’s
Directorate Aircraft Certification Service. Federal Register.
1182(d)(4)), the Department of State and
[FR Doc. 2016–04931 Filed 3–7–16; 8:45 am] the Department of Homeland Security Regulatory Findings
BILLING CODE 4910–13–P have consulted and are acting jointly to
propose amendments to 8 CFR 212.1 A. Administrative Procedure Act
and 22 CFR 41.2. The Department is publishing this
DEPARTMENT OF STATE notice of proposed rulemaking with a
Former Regulations
60-day period of notice and comment.
22 CFR Part 41 The Department of State and the
former Immigration and Naturalization B. Regulatory Flexibility Act/Executive
[Public Notice: 9458]
Service (INS) published parallel Order 13272: Small Business
RIN 1400–AD30 regulations in 1994 to consolidate and The Department of State has reviewed
simplify procedures for processing this regulation and certifies that this
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS
Visas: Documentation of
waivers of documentary requirements in rule will not have a significant
Nonimmigrants Under the Immigration
cases of emergency circumstances. INS economic impact on a substantial
and Nationality Act, as Amended
amended its regulation in 1996, number of small entities.
AGENCY: Department of State. preserving its authority to impose fines
on carriers for transporting C. The Unfunded Mandates Reform Act
ACTION: Notice of proposed rulemaking. of 1995
nonimmigrants who did not present a
SUMMARY: The Department of State valid visa and passport, even in cases Section 202 of the Unfunded
proposes to reinstate a temporarily where the INS granted a waiver. In Mandates Reform Act of 1995, Public
suspended amendment to its visa 1999, the Department of State published Law 104–4, 109 Stat. 48, 2 U.S.C. 1532,
VerDate Sep<11>2014 16:21 Mar 07, 2016 Jkt 238001 PO 00000 Frm 00019 Fmt 4702 Sfmt 4702 E:\FR\FM\08MRP1.SGM 08MRP1](https://thefederalregister.org/doc/81_FR_12095/page/1.svg)
![Federal Register / Vol. 81, No. 45 / Tuesday, March 8, 2016 / Proposed Rules 12051
generally requires agencies to prepare a H. Executive Order 13175— that the a nonimmigrant’s claim of
statement before proposing any rule that Consultation and Coordination With emergency circumstances is legitimate
may result in an annual expenditure of Indian Tribal Governments and that approval of the waiver would
$100 million or more by State, local, or The Department has determined that be appropriate under all of the attendant
tribal governments, or by the private this rulemaking will not have tribal facts and circumstances.
sector. This rule will not result in any implications, will not impose * * * * *
such expenditure, nor will it substantial direct compliance costs on Dated: February 24, 2016.
significantly or uniquely affect small Indian tribal governments, and will not
governments. David T. Donahue,
pre-empt tribal law. Accordingly, the Acting Assistant Secretary for Consular
D. The Small Business Regulatory requirements of section 5 of Executive Affairs, Department of State.
Enforcement Fairness Act of 1996 Order 13175 do not apply to this [FR Doc. 2016–05136 Filed 3–7–16; 8:45 am]
rulemaking.
BILLING CODE 4710–06–P
This rule is not a major rule as
I. Paperwork Reduction Act
defined by 5 U.S.C. 804, for purposes of
congressional review of agency This rule does not impose or revise
rulemaking under the Small Business information collections subject to the DEPARTMENT OF HOUSING AND
Regulatory Enforcement Fairness Act of provisions of the Paperwork Reduction URBAN DEVELOPMENT
1996. This rule will not result in an Act, 44 U.S.C., Chapter 35.
24 CFR Part 266
annual effect on the economy of $100 List of Subjects in 22 CFR Part 41
million or more; a major increase in [Docket No FR–5881–P–01]
costs or prices; or adverse effects on Aliens, Foreign officials, Immigration,
RIN 2502–AJ35
competition, employment, investment, Passports and Visas, Students
productivity, innovation, or the ability Accordingly, for the reasons set forth Section 542(c) Housing Finance
of United States-based companies to in the preamble, the State Department Agencies Risk-Sharing Program:
compete with foreign-based companies proposes to amend 22 CFR part 41 as Revisions to Regulations
in domestic and import markets. follows:
AGENCY: Office of the Assistant
E. Executive Order 12866 PART 41 VISAS: DOCUMENTATION OF Secretary for Housing-Federal Housing
NONIMMIGRANTS UNDER THE Commissioner, HUD.
The Department of State does not IMMIGRATION AND NATIONALITY ACTION: Proposed rule.
assess or collect fines under INA section ACT, AS AMENDED
273. Neither this proposed Department SUMMARY: Through the Section 542(c)
of State rule, nor prior versions of this ■ 1. The authority citation for part 41 is HFA Risk-Sharing program, HUD enters
regulation, address fines against revised to read as follows: into risk-sharing agreements with State
carriers. However, the November 20, Authority: 22 U.S.C. 2651a; 8 U.S.C. 1104; and local housing finance agencies
2009, opinion from the United States Pub. L. 105–277, 112 Stat. 2681–795 through (HFAs) so that HFAs can provide more
Circuit Court of Appeals for the Second 2681–801; 8 U.S.C. 1185 note (section 7209 insurance and credit for multifamily
Circuit requires joint rulemaking by the of Pub. L. 108–458, as amended by section loans. This proposed rule would amend
Department of State and DHS for the 546 of Pub. L. 109–295). existing regulations for the program so
DHS rule to take effect. United Airlines, ■ 2. Section 41.2 is amended by revising that they better align with policies for
Inc. v. Brien, 588 F.3d 158, 179 (2d Cir. paragraph (i) to read as follows: other HUD programs, reflect current
2009). For a full economic analysis of industry and HUD practices, and
the jointly proposed DHS rule, § 41.2 Exemption or Waiver by Secretary conform to statutory amendments.
including Regulatory Flexibility and of State and Secretary of Homeland Additionally, this proposed rule would
Regulatory Impact Analyses, see the Security of passport and/or visa
provide HUD with greater flexibility in
requirements for certain categories of
U.S. Customs and Border Protection operating the Section 542(c) HFA Risk-
nonimmigrants.
Notice of Proposed Rulemaking for 8 Sharing program 0s,over time, and
CFR 212.1(g), RIN 1651–AA97. * * * * * would provide more flexibility for
(i) Individual cases of unforeseen
certain HFAs accepting a greater share
F. Executive Order 13563 emergencies. Except as provided in
of the risk of loss on mortgages insured
paragraphs (a) through (h) and (j)
The Department of State has under the program. This proposed rule
through (l) of this section, all
considered this rule in light of would also update references and
nonimmigrants are required to present a
Executive Order 13563 and affirms that terminology that are now outdated and
valid, unexpired visa and passport upon
this regulation is consistent with the clarify certain provisions.
arrival in the United States. A
guidance therein. nonimmigrant may apply for a waiver of DATES: Comment Due Date: April 7,
the visa and passport requirement if, 2016.
G. Executive Orders 12372 and 13132:
Federalism either prior to the nonimmigrant’s ADDRESSES: Interested persons are
embarkation abroad or upon arrival at a invited to submit comments regarding
This regulation will not have port of entry, the officer in charge of the this notice to the Regulations Division,
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS
substantial direct effects on the States, port of entry concludes that the Office of General Counsel, Department
on the relationship between the national nonimmigrant is unable to present the of Housing and Urban Development,
government and the States, or the required documents because of an 451 7th Street SW., Room 10276,
distribution of power and unforeseen emergency. The DHS district Washington, DC 20410–0500.
responsibilities among the various director may grant a waiver of the visa Communications must refer to the above
levels of government. Nor will the rule or passport requirement pursuant to docket number and title. There are two
have federalism implications warranting INA 212(d)(4)(A), without the prior methods for submitting public
the application of Executive Orders No. concurrence of the Department of State, comments. All submissions must refer
12372 and No. 13132. if the DHS district director concludes to the above docket number and title.
VerDate Sep<11>2014 16:21 Mar 07, 2016 Jkt 238001 PO 00000 Frm 00020 Fmt 4702 Sfmt 4702 E:\FR\FM\08MRP1.SGM 08MRP1](https://thefederalregister.org/doc/81_FR_12095/page/2.svg)
Document Created: 2018-02-02 15:09:49
Document Modified: 2018-02-02 15:09:49
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Proposed Rules | |
| Action | Notice of proposed rulemaking. | |
| Dates | Comments must be received on or before May 9, 2016. | |
| Contact | Lauren A. Boquin, Legislation and Regulations Division, Legal Affairs, Office of Visa Services, Bureau of Consular Affairs, Department of State, 600 19th St NW., Washington, DC 20006 (202) 485-7638. | |
| FR Citation | 81 FR 12050 | |
| RIN Number | 1400-AD30 | |
| CFR Associated | Aliens; Foreign Officials; Immigration; Passports and Visas and Students |
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