81 FR 88101 - Visas: Classification of Immediate Family Members as A, C-3, G, and NATO Nonimmigrants

DEPARTMENT OF STATE

Federal Register Volume 81, Issue 235 (December 7, 2016)

Page Range		88101-88103
FR Document		2016-28518

This rule amends the definition of immediate family for purposes of A, C-3, G, and NATO visa classifications in two ways: It revises the eligibility requirements for unmarried adult sons and daughters age 21 or older for these visa classifications, and clarifies for purposes of G-4 visa classification that the international organization employing the principal alien must recognize an individual as immediate family to be eligible for derivative U.S. visa status. Furthermore, this rule permits qualified immediate family members of A- 1, A-2, G-1, G-2, G-3, and G-4 nonimmigrants to be independently classified as NATO-1, NATO-2, NATO-3, NATO-4, NATO-5, and NATO-6.

Federal Register, Volume 81 Issue 235 (Wednesday, December 7, 2016)

[Federal Register Volume 81, Number 235 (Wednesday, December 7, 2016)]
[Rules and Regulations]
[Pages 88101-88103]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-28518]


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DEPARTMENT OF STATE

22 CFR Part 41

RIN 1400-AD96
[Public Notice: 9638]


Visas: Classification of Immediate Family Members as A, C-3, G, 
and NATO Nonimmigrants

AGENCY: State Department.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This rule amends the definition of immediate family for 
purposes of A, C-3, G, and NATO visa classifications in two ways: It 
revises the eligibility requirements for unmarried adult sons and 
daughters age 21 or older for these visa classifications, and clarifies 
for purposes of G-4 visa classification that the international 
organization employing the principal alien must recognize an individual 
as immediate family to be eligible for derivative U.S. visa status. 
Furthermore, this rule permits qualified immediate family members of A-
1, A-2, G-1, G-2, G-3, and G-4 nonimmigrants to be independently 
classified as NATO-1, NATO-2, NATO-3, NATO-4, NATO-5, and NATO-6.

DATES: This final rule is effective on December 7, 2016.

FOR FURTHER INFORMATION CONTACT: Paul-Anthony L. Magadia, U.S. 
Department of State, Office of Legislation and Regulations, CA/VO/L/R, 
600 19th Street NW., SA-17, Room 12-526B, Washington, DC 20522, 202-
485-7641 or [email protected].

SUPPLEMENTARY INFORMATION: Prior to this amendment, an unmarried adult 
son or daughter who is not part of any other household and resides 
regularly in the household of the principal alien must be classified in 
A or G visa classifications, even if otherwise eligible for another 
nonimmigrant classification and regardless of age or the intention of 
the sending government or international organization. Yet for purposes 
of privileges and immunities, the Department of State accepts only 
unmarried children under the age of 21, or unmarried sons and daughters 
under the age of 23 and in full-time attendance as students at post-
secondary educational institutions, as dependents. Similarly, under 8 
CFR 214.2(a)(2) and (g)(2) for employment authorization purposes, 
Department of Homeland Security (DHS) regulations generally only 
consider unmarried children under the age of 21, or unmarried sons and 
daughters under the age of 23 and in full-time attendance as students 
at post-secondary educational institutions, to be dependents. (Under 
certain circumstances, DHS, under its regulations, may also recognize 
as dependents sons and daughters up to the age of 25 or of any age if 
physically or mentally challenged.) In practice, requiring A or G 
classification for sons and daughters above these age limits precludes 
them from obtaining a nonimmigrant classification that would enable 
them to accept employment in the United States.
    This rule narrows the definition of immediate family in the A, C-3 
(aliens in transit under section 212(d)(8) of the Immigration and 
Nationality Act, 8 U.S.C. 1182(d)(8)), G, and relevant NATO 
nonimmigrant visa classifications so that only unmarried sons and 
daughters residing with the principal who are under the age of 21, or 
under the age of 23 and in full-time attendance as students at post-
secondary educational institutions, will continue to be considered 
immediate family. Any other unmarried son or daughter residing with the 
principal will only qualify if he or she meets the same criteria the 
rule imposes on other family members. In particular, he or she must be 
recognized as an ``immediate family member'' by the sending government 
or international organization for purposes of eligibility for rights 
and benefits and also is individually authorized by the Department. An 
adult son or daughter

[[Page 88102]]

who is no longer recognized as an immediate family member would have to 
apply, and be eligible for, another visa classification or seek a 
change of status to another nonimmigrant status. This rule also amends 
22 CFR 41.21(a)(3)(iii)(C) to clarify that for purposes of G-4 visa 
classification, the employing international organization must recognize 
individuals as immediate family members, before they may be treated as 
such for U.S. visa purposes, similar to the requirement that a sending 
government must recognize an individual as immediate family.
    Finally, prior to this amendment, 22 CFR 41.22(b) and 41.24(b) 
required that an alien entitled to classification as an A-1, A-2, or G-
1 through G-4 nonimmigrant must be classified as such, even those who 
would otherwise be eligible for another nonimmigrant classification. 
This rule allows immediate family members of A-1s, A-2s, and G-1s 
through G-4s to be instead independently classified as a principal in 
NATO-1 through NATO-6 visa classifications, but not other nonimmigrant 
classifications.

Regulatory Findings

Administrative Procedure Act

    The Department of State is of the opinion that regulating visa 
categories involves a foreign affairs function of the United States 
Government and that rules implementing this function are exempt from 
sections 553 (rulemaking) and 554 (adjudications) of the Administrative 
Procedure Act. Since the Department is of the opinion that this rule is 
exempt from 5 U.S.C. 553, it is the view of the Department that the 
provisions of Section 553(d) do not apply. Therefore, this rule is 
effective upon publication.

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 analysis requirements set forth by 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, 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 does 
not require the Department to prepare a statement because it will not 
result in any such expenditure, nor will it significantly or uniquely 
affect small governments. This rule involves visas, which involves 
individuals, and does not affect, state, local, or tribal governments, 
or businesses.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined in 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. This rule involves visas, which 
involves individuals, and does not affect, state, local, or tribal 
governments, or businesses.

Executive Orders 12866 and 13563

    Executive Orders 13563 and 12866 direct agencies to assess costs 
and benefits of available regulatory alternatives and, if regulation is 
necessary, to select regulatory approaches that maximize net benefits 
(including potential economic, environmental, public health and safety 
effects, distributed impacts, and equity). These Executive Orders 
stress the importance of quantifying both costs and benefits, of 
reducing costs, of harmonizing rules, and of promoting flexibility. The 
Department has examined this rule in light of Executive Order 13563, 
and has determined that the rulemaking is consistent with the guidance 
therein.

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 12372 and 
13132.

Executive Order 12988: Civil Justice Reform

    The Department has reviewed the rule 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.

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.

Paperwork Reduction Act

    This rule does not impose or revise any reporting or recordkeeping 
requirements subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 
35.

List of Subjects in 22 CFR Part 41

    Aliens, Immigration, Nonimmigrant visas.

    For the reasons stated in the preamble, 22 CFR part 41 is amended 
as follows:

PART 41--[AMENDED]

0
1. The authority citation for part 41 continues 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 41.21 is amended by revising paragraph (a)(3) to read as 
follows:


Sec.  41.21   Foreign Officials--General.

    (a) * * *
    (3) Immediate family, as used in INA 101(a)(15)(A), 101(a)(15)(G), 
and 212(d)(8), and in classification under the NATO visa symbols, 
means:
    (i) The spouse who resides regularly in the household of the 
principal alien and is not a member of some other household;
    (ii) Unmarried sons and daughters, whether by blood or adoption, 
who reside regularly in the household of the principal alien and who 
are not members of some other household, and provided that such 
unmarried sons and daughters are:
    (A) Under the age of 21, or
    (B) Under the age of 23 and in full-time attendance as students at 
post-secondary educational institutions; and

[[Page 88103]]

    (iii) Other individuals who:
    (A) Reside regularly in the household of the principal alien;
    (B) Are not members of some other household;
    (C) Are recognized as dependents of the principal alien by the 
sending government or international organization, as demonstrated by 
eligibility for rights and benefits, such as the issuance of a 
diplomatic or official passport, or travel or other allowances; and
    (D) Are individually authorized by the Department.
* * * * *

0
3. Section 41.22 is amended by revising paragraph (b) to read as 
follows:


Sec.  41.22   Officials of foreign governments.

* * * * *
    (b) Classification under INA section 101(a)(15)(A). An alien 
entitled to classification under INA section 101(a)(15)(A) shall be 
classified under this section even if eligible for another nonimmigrant 
classification. An exception may be made where an immediate family 
member is classifiable as A-1 or A-2 under paragraph (a)(2) of this 
section is also independently classifiable as a principal under INA 
section 101(a)(15)(G)(i), (ii), (iii), (iv) or in NATO-1 through NATO-6 
classification.
* * * * *

0
4. Section 41.24 is amended by revising paragraph (b)(4) to read as 
follows:


Sec.  41.24   International organization aliens.

* * * * *
    (b) * * *
    (4) An alien not classifiable under INA section 101(a)(15)(A) or in 
NATO-1 through NATO-6 classification but entitled to classification 
under INA section 101(a)(15)(G) shall be classified under section 
101(a)(15)(G), even if also eligible for another nonimmigrant 
classification. An alien classified under INA section 101(a)(15)(G) as 
an immediate family member of a principal alien classifiable G-1, G-2, 
G-3 or G-4, may continue to be so classified even if he or she obtains 
employment subsequent to his or her initial entry into the United 
States that would allow classification under INA section 101(a)(15)(A). 
Such alien shall not be classified in a category other than A or G, 
even if also eligible for another nonimmigrant classification.
* * * * *

Michele Thoren Bond,
Assistant Secretary for Consular Affairs, Department of State.
[FR Doc. 2016-28518 Filed 12-6-16; 8:45 am]
 BILLING CODE P

Federal Register / Vol. 81, No. 235 / Wednesday, December 7, 2016 / Rules and Regulations 88101

Section 808(b)(2) of the FD&C Act II. Paperwork Reduction Act of 1995 Legislation and Regulations, CA/VO/L/
requires FDA to develop model This guidance refers to previously R, 600 19th Street NW., SA–17, Room
accreditation standards that recognized approved collection of information 12–526B, Washington, DC 20522, 202–
accreditation bodies shall use to qualify found in FDA regulations. These 485–7641 or magadiapl@state.gov.
third-party certification bodies for collections of information are subject to SUPPLEMENTARY INFORMATION: Prior to
accreditation, and in so doing, to look review by the Office of Management and this amendment, an unmarried adult
to existing standards for certification Budget (OMB) under the Paperwork son or daughter who is not part of any
bodies (as of the date of enactment of Reduction Act of 1995 (44 U.S.C. 3501– other household and resides regularly in
FSMA) to avoid unnecessary 3520). The collections of information the household of the principal alien
duplication of efforts and costs. This regarding ‘‘Accreditation of Third Party must be classified in A or G visa
guidance constitutes the model Certification Bodies to Conduct Food classifications, even if otherwise eligible
accreditation standards referred to in Safety Audits and Issue Certifications,’’ for another nonimmigrant classification
section 808(b)(2) of the FD&C Act. The have been approved under OMB control and regardless of age or the intention of
guidance contains FDA number 0910–0750. the sending government or international
recommendations on third-party organization. Yet for purposes of
III. Electronic Access privileges and immunities, the
certification body qualifications for
accreditation to conduct food safety Persons with access to the Internet Department of State accepts only
audits and to issue food and/or facility may obtain the guidance at either http:// unmarried children under the age of 21,
certifications under an FDA program www.fda.gov/FoodGuidances or http:// or unmarried sons and daughters under
required by FSMA. www.regulations.gov. Use the FDA Web the age of 23 and in full-time attendance
site listed in the previous sentence to as students at post-secondary
FDA was guided in developing this
find the most current version of the educational institutions, as dependents.
guidance, in part, by the National
guidance. Similarly, under 8 CFR 214.2(a)(2) and
Technology Transfer and Advancement
Dated: December 1, 2016. (g)(2) for employment authorization
Act of 1995, which directs Federal purposes, Department of Homeland
Agencies to use voluntary consensus Leslie Kux,
Security (DHS) regulations generally
standards in lieu of government-unique Associate Commissioner for Policy.
only consider unmarried children under
standards, except where inconsistent [FR Doc. 2016–29278 Filed 12–6–16; 8:45 am]
the age of 21, or unmarried sons and
with law or otherwise impractical. BILLING CODE 4164–01–P daughters under the age of 23 and in
In developing the guidance, FDA full-time attendance as students at post-
considered several voluntary consensus secondary educational institutions, to be
standards for their relevance to the DEPARTMENT OF STATE dependents. (Under certain
qualifications of third-party certification circumstances, DHS, under its
bodies that would certify foreign food 22 CFR Part 41 regulations, may also recognize as
facilities and/or their foods for RIN 1400–AD96 dependents sons and daughters up to
conformance with the requirements of the age of 25 or of any age if physically
[Public Notice: 9638]
the FD&C Act. FDA also sought to or mentally challenged.) In practice,
identify the standards most commonly Visas: Classification of Immediate requiring A or G classification for sons
used by stakeholders (e.g., other Family Members as A, C–3, G, and and daughters above these age limits
governments, public and private NATO Nonimmigrants precludes them from obtaining a
accreditation bodies, the food industry, nonimmigrant classification that would
and the international standards AGENCY: State Department. enable them to accept employment in
community) in qualifying third-party ACTION: Final rule. the United States.
certification bodies for conducting food This rule narrows the definition of
SUMMARY: This rule amends the immediate family in the A, C–3 (aliens
safety audits. As a result, FDA was definition of immediate family for
guided in developing the model in transit under section 212(d)(8) of the
purposes of A, C–3, G, and NATO visa Immigration and Nationality Act, 8
accreditation standards guidance classifications in two ways: It revises
document by International Organization U.S.C. 1182(d)(8)), G, and relevant
the eligibility requirements for NATO nonimmigrant visa
for Standardization (ISO)/International unmarried adult sons and daughters age
Electrotechnical Commission (IEC) ISO/ classifications so that only unmarried
21 or older for these visa classifications, sons and daughters residing with the
IEC 17021: Conformity Assessment— and clarifies for purposes of G–4 visa
Requirements for bodies providing audit principal who are under the age of 21,
classification that the international or under the age of 23 and in full-time
and certification management systems organization employing the principal
(2015) (ISO/IEC 17021:2015) and ISO/ attendance as students at post-
alien must recognize an individual as secondary educational institutions, will
IEC 17065: Conformity Assessment— immediate family to be eligible for continue to be considered immediate
Requirements for bodies certifying derivative U.S. visa status. Furthermore, family. Any other unmarried son or
products, processes and services (2012) this rule permits qualified immediate daughter residing with the principal
(ISO/IEC 17065:2012). family members of A–1, A–2, G–1, G– will only qualify if he or she meets the
We received several comments on the 2, G–3, and G–4 nonimmigrants to be same criteria the rule imposes on other
asabaliauskas on DSK3SPTVN1PROD with RULES

draft guidance and have modified the independently classified as NATO–1, family members. In particular, he or she
final guidance where appropriate. We NATO–2, NATO–3, NATO–4, NATO–5, must be recognized as an ‘‘immediate
revised the guidance for clarity and and NATO–6. family member’’ by the sending
conformance with the final rule. We DATES: This final rule is effective on government or international
also updated references to the ISO/IEC December 7, 2016. organization for purposes of eligibility
standards. The guidance announced in FOR FURTHER INFORMATION CONTACT: for rights and benefits and also is
this notice finalizes the draft guidance Paul-Anthony L. Magadia, U.S. individually authorized by the
dated July 2015. Department of State, Office of Department. An adult son or daughter

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88102 Federal Register / Vol. 81, No. 235 / Wednesday, December 7, 2016 / Rules and Regulations

who is no longer recognized as an result in an annual expenditure of $100 Executive Order 12988: Civil Justice
immediate family member would have million or more by State, local, or tribal Reform
to apply, and be eligible for, another governments, or by the private sector. The Department has reviewed the rule
visa classification or seek a change of This rule does not require the in light of sections 3(a) and 3(b)(2) of
status to another nonimmigrant status. Department to prepare a statement Executive Order 12988 to eliminate
This rule also amends 22 CFR because it will not result in any such ambiguity, minimize litigation, establish
41.21(a)(3)(iii)(C) to clarify that for expenditure, nor will it significantly or clear legal standards, and reduce
purposes of G–4 visa classification, the uniquely affect small governments. This burden.
employing international organization rule involves visas, which involves
must recognize individuals as Executive Order 13175—Consultation
individuals, and does not affect, state,
immediate family members, before they and Coordination With Indian Tribal
local, or tribal governments, or
may be treated as such for U.S. visa Governments
businesses.
purposes, similar to the requirement The Department has determined that
that a sending government must Small Business Regulatory Enforcement this rulemaking will not have tribal
recognize an individual as immediate Fairness Act of 1996 implications, will not impose
family. substantial direct compliance costs on
Finally, prior to this amendment, 22 This rule is not a major rule as
Indian tribal governments, and will not
CFR 41.22(b) and 41.24(b) required that defined in 5 U.S.C. 804, for purposes of
pre-empt tribal law. Accordingly, the
an alien entitled to classification as an congressional review of agency requirements of Section 5 of Executive
A–1, A–2, or G–1 through G–4 rulemaking under the Small Business Order 13175 do not apply to this
nonimmigrant must be classified as Regulatory Enforcement Fairness Act of rulemaking.
such, even those who would otherwise 1996. This rule will not result in an
be eligible for another nonimmigrant annual effect on the economy of $100 Paperwork Reduction Act
classification. This rule allows million or more; a major increase in This rule does not impose or revise
immediate family members of A–1s, A– costs or prices; or adverse effects on any reporting or recordkeeping
2s, and G–1s through G–4s to be instead competition, employment, investment, requirements subject to the Paperwork
independently classified as a principal productivity, innovation, or the ability Reduction Act, 44 U.S.C. Chapter 35.
in NATO–1 through NATO–6 visa of United States-based companies to
List of Subjects in 22 CFR Part 41
classifications, but not other compete with foreign-based companies
nonimmigrant classifications. in domestic and import markets. This Aliens, Immigration, Nonimmigrant
rule involves visas, which involves visas.
Regulatory Findings
individuals, and does not affect, state, For the reasons stated in the
Administrative Procedure Act local, or tribal governments, or preamble, 22 CFR part 41 is amended as
The Department of State is of the businesses. follows:
opinion that regulating visa categories Executive Orders 12866 and 13563 PART 41—[AMENDED]
involves a foreign affairs function of the
United States Government and that Executive Orders 13563 and 12866 ■ 1. The authority citation for part 41
rules implementing this function are direct agencies to assess costs and continues to read as follows:
exempt from sections 553 (rulemaking) benefits of available regulatory Authority: 22 U.S.C. 2651a; 8 U.S.C. 1104;
and 554 (adjudications) of the alternatives and, if regulation is Pub. L. 105–277, 112 Stat. 2681–795 through
Administrative Procedure Act. Since the necessary, to select regulatory 2681–801; 8 U.S.C. 1185 note (section 7209
Department is of the opinion that this approaches that maximize net benefits of Pub. L. 108–458, as amended by section
rule is exempt from 5 U.S.C. 553, it is (including potential economic, 546 of Pub. L. 109–295).
the view of the Department that the environmental, public health and safety ■ 2. Section 41.21 is amended by
provisions of Section 553(d) do not effects, distributed impacts, and equity). revising paragraph (a)(3) to read as
apply. Therefore, this rule is effective These Executive Orders stress the follows:
upon publication. importance of quantifying both costs
and benefits, of reducing costs, of § 41.21 Foreign Officials—General.
Regulatory Flexibility Act/Executive
Order 13272: Small Business harmonizing rules, and of promoting (a) * * *
flexibility. The Department has (3) Immediate family, as used in INA
Because this final rule is exempt from examined this rule in light of Executive 101(a)(15)(A), 101(a)(15)(G), and
notice and comment rulemaking under Order 13563, and has determined that 212(d)(8), and in classification under
5 U.S.C. 553, it is exempt from the the rulemaking is consistent with the the NATO visa symbols, means:
regulatory flexibility analysis guidance therein. (i) The spouse who resides regularly
requirements set forth by the Regulatory in the household of the principal alien
Flexibility Act (5 U.S.C. 603 and 604). Executive Orders 12372 and 13132: and is not a member of some other
Nonetheless, consistent with the Federalism household;
Regulatory Flexibility Act (5 U.S.C. (ii) Unmarried sons and daughters,
605(b)), the Department certifies that This regulation will not have whether by blood or adoption, who
this rule will not have a significant substantial direct effects on the States, reside regularly in the household of the
asabaliauskas on DSK3SPTVN1PROD with RULES

economic impact on a substantial on the relationship between the national principal alien and who are not
number of small entities. government and the States, or the members of some other household, and
distribution of power and provided that such unmarried sons and
Unfunded Mandates Reform Act of 1995 responsibilities among the various daughters are:
The Unfunded Mandates Reform Act levels of government. Nor will the rule (A) Under the age of 21, or
of 1995, 2 U.S.C. 1532, generally have federalism implications warranting (B) Under the age of 23 and in full-
requires agencies to prepare a statement the application of Executive Orders time attendance as students at post-
before proposing any rule that may 12372 and 13132. secondary educational institutions; and

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Federal Register / Vol. 81, No. 235 / Wednesday, December 7, 2016 / Rules and Regulations 88103

(iii) Other individuals who: G, even if also eligible for another allowed under section 901(a), and in the
(A) Reside regularly in the household nonimmigrant classification. case of foreign income tax paid by a
of the principal alien; * * * * * section 902 corporation (as defined in
section 909(d)(5)), will not be taken into
(B) Are not members of some other Michele Thoren Bond, account for purposes of section 902 or
household; Assistant Secretary for Consular Affairs, 960. Instead, the disqualified portion of
(C) Are recognized as dependents of Department of State. any foreign income tax (the disqualified
the principal alien by the sending [FR Doc. 2016–28518 Filed 12–6–16; 8:45 am] tax amount) is permitted as a deduction.
government or international BILLING CODE P See section 901(m)(6).
organization, as demonstrated by Under section 901(m)(2), a CAA is (i)
eligibility for rights and benefits, such a qualified stock purchase (as defined in
as the issuance of a diplomatic or DEPARTMENT OF THE TREASURY section 338(d)(3)) to which section
338(a) applies; (ii) any transaction that
official passport, or travel or other
Internal Revenue Service is treated as an acquisition of assets for
allowances; and
U.S. income tax purposes and as the
(D) Are individually authorized by the 26 CFR Part 1 acquisition of stock of a corporation (or
Department. is disregarded) for purposes of a foreign
[TD 9800] income tax; (iii) any acquisition of an
* * * * *
RIN 1545–BM75 interest in a partnership that has an
■ 3. Section 41.22 is amended by election in effect under section 754; and
revising paragraph (b) to read as follows: Covered Asset Acquisitions (iv) to the extent provided by the
Secretary, any other similar transaction.
§ 41.22 Officials of foreign governments. AGENCY: Internal Revenue Service (IRS), Section 901(m)(3)(A) provides that the
* * * * * Treasury. term ‘‘disqualified portion’’ means, with
(b) Classification under INA section ACTION: Temporary regulations. respect to any CAA, for any taxable
101(a)(15)(A). An alien entitled to year, the ratio (expressed as a
SUMMARY: This document contains percentage) of (i) the aggregate basis
classification under INA section temporary Income Tax Regulations
101(a)(15)(A) shall be classified under differences (but not below zero)
under section 901(m) of the Internal allocable to such taxable year with
this section even if eligible for another Revenue Code (Code) with respect to
nonimmigrant classification. An respect to all RFAs; divided by (ii) the
transactions that generally are treated as income on which the foreign income tax
exception may be made where an asset acquisitions for U.S. income tax referenced in section 901(m)(1) is
immediate family member is classifiable purposes and either are treated as stock determined. If the taxpayer fails to
as A–1 or A–2 under paragraph (a)(2) of acquisitions or are disregarded for substantiate the income on which the
this section is also independently foreign income tax purposes. These foreign income tax is determined to the
classifiable as a principal under INA regulations are necessary to provide satisfaction of the Secretary, such
section 101(a)(15)(G)(i), (ii), (iii), (iv) or guidance on applying section 901(m). income will be determined by dividing
in NATO–1 through NATO–6 The text of the temporary regulations the amount of such foreign income tax
classification. also serves in part as the text of the by the highest marginal tax rate
* * * * * proposed regulations under section applicable to the taxpayer’s income in
901(m) (REG–129128–14) published in the relevant jurisdiction.
■ 4. Section 41.24 is amended by the Proposed Rules section of this issue Section 901(m)(3)(B)(i) provides the
revising paragraph (b)(4) to read as of the Federal Register. general rule that the basis difference
follows: DATES: Effective date: These regulations with respect to any RFA will be
are effective on December 7, 2016. allocated to taxable years using the
§ 41.24 International organization aliens.
Applicability dates: For dates of applicable cost recovery method for U.S.
* * * * * applicability, see §§ 1.901(m)–1T(b), income tax purposes. Section
(b) * * * 1.901(m)–2T(f), 1.901(m)–4T(g), 901(m)(3)(B)(ii) provides that, except as
1.901(m)–5T(i), and 1.901(m)–6T(d). otherwise provided by the Secretary, if
(4) An alien not classifiable under
FOR FURTHER INFORMATION CONTACT:
there is a disposition of an RFA, the
INA section 101(a)(15)(A) or in NATO– basis difference allocated to the taxable
1 through NATO–6 classification but Jeffrey L. Parry, (202) 317–6936 (not a
toll-free number). year of the disposition will be the excess
entitled to classification under INA of the basis difference of such asset over
section 101(a)(15)(G) shall be classified SUPPLEMENTARY INFORMATION:
the aggregate basis difference of such
under section 101(a)(15)(G), even if also Background asset that has been allocated to all prior
eligible for another nonimmigrant taxable years. The statute further
classification. An alien classified under I. Section 901(m)
provides that no basis difference with
INA section 101(a)(15)(G) as an Section 212 of the Education Jobs and respect to such asset will be allocated to
immediate family member of a principal Medicaid Assistance Act (EJMAA), any taxable year thereafter.
alien classifiable G–1, G–2, G–3 or G–4, enacted on August 10, 2010 (Public Law Section 901(m)(3)(C)(i) provides that
may continue to be so classified even if 111–226), added section 901(m) to the basis difference means, with respect to
asabaliauskas on DSK3SPTVN1PROD with RULES

he or she obtains employment Code. Section 901(m)(1) provides that, any RFA, the excess of (i) the adjusted
subsequent to his or her initial entry in the case of a covered asset acquisition basis of such asset immediately after the
into the United States that would allow (CAA), the disqualified portion of any CAA, over (ii) the adjusted basis of such
classification under INA section foreign income tax determined with asset immediately before the CAA. If the
101(a)(15)(A). Such alien shall not be respect to the income or gain adjusted basis of an RFA immediately
classified in a category other than A or attributable to relevant foreign assets before the CAA exceeds the adjusted
(RFAs) will not be taken into account in basis of the RFA immediately after the
determining the foreign tax credit CAA (that is, where the adjusted basis

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Document Created: 2016-12-07 05:31:40
Document Modified: 2016-12-07 05:31:40

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		Rules and Regulations
Action		Final rule.
Dates		This final rule is effective on December 7, 2016.
Contact		Paul-Anthony L. Magadia, U.S. Department of State, Office of Legislation and Regulations, CA/VO/L/R, 600 19th Street NW., SA-17, Room 12-526B, Washington, DC 20522, 202- 485-7641 or [email protected]
FR Citation		81 FR 88101
RIN Number		1400-AD96
CFR Associated		Aliens; Immigration and Nonimmigrant Visas