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)

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.

[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]


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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.

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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