SUPPLEMENTARY INFORMATION:

I. What changes to 22 CFR 41.12, 41.84, and 42.11 does this Final Rule make?

The Department is amending 22 CFR 41.12 to include classification symbols and related descriptions for the CW-1, CW-2, E-2C, and T-6 visa classifications. The Department is also amending 22 CFR 42.11 to include classification symbols and related descriptions for surviving spouses and children, as described in Section 403(a) of the Emergency Security Supplemental Appropriations Act, 2021 (“ESSAA”), Public Law 117-31, 135 Stat. 309, as well as classification symbols and related descriptions for EB-5 immigrant visas initiated by the EB-5 Reform and Integrity Act of 2022, Division BB of the Consolidated Appropriations Act, 2022, Public Law 117-103 (“EB-5 Reform and Integrity Act”). The changes in the classification descriptions under this Final Rule will have no impact on who may qualify for such a visa; as such, this Final Rule will not practically impact any current applicant for any visa. This rule also makes technical corrections to the classification symbols for visa classifications to ensure the accurate inclusion of all active immigrant visa classifications.

II Why is the Department promulgating this Final Rule?

A. T Visas, Victims of Trafficking in Persons

The Trafficking Victims Protection Reauthorization Act of 2008, Public Law 106-386 amended Section 101(a)(15)(T)(ii)(III) of the INA to include parents and unmarried siblings under the age of 18 whose eligibility for T derivative classification is not tied to the age of the principal applicant, but rather to their present danger of retaliation as a result of the principal's escape from trafficking or cooperation with law enforcement, as determined by U.S. Citizenship and Immigration Services. These derivatives receive T-4 and T-5 visa classifications. Additionally, Section 1221 of the Violence Against Women Reauthorization Act of 2013, Public Law 113-4, amended Section 101(a)(15)(T)(ii)(III) of the INA by adding the T-6 derivative classification, which is available to an eligible adult or minor child of a T-1 principal applicant's derivative family member, if such derivative's adult or minor child themself faces a present danger of retaliation as a result of the principal's escape from trafficking or cooperation with law enforcement.

Classification symbols in existing regulations at 22 CFR 41.12 do not reflect the 2013 expansion of eligibility for the adult or minor child of a derivative beneficiary, and to address this, this rule amends 22 CFR 41.12 to add the T-6 classification symbol and description. This rule also adds details to existing descriptions of the T-4 and T-5 visa classification to better reflect the statutory criteria. The rule further amends 22 CFR 41.84 to reflect the current language more closely in INA section 101(a)(15)(T)(ii) which describes the family members who may qualify for T nonimmigrant status as certain accompanying or following-to-join derivative family members of a principal T-1 nonimmigrant. These classification codes are consistent with those used by the Department of Homeland Security.

B. CW Visas—Commonwealth of Northern Mariana Islands (CNMI) Transitional Workers

Section 6 of the Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America, Public Law 94-241, as amended by Section 702(a) of the Consolidated Natural Resources Act of 2008, Public Law 110-229, provides for nonimmigrant visas for certain CNMI transitional workers, investors, and their spouses and children. The Department classifies CNMI transitional workers as CW-1, spouses, or children of a CW-1 as a CW-2, and CNMI investors and their spouses or children as E-2C. This rule adds these nonimmigrant visa classifications to 22 CFR 41.12. These classification codes are consistent with those used by the Department of Homeland Security.

C. SS1 Classification—Surviving Spouses and Children of United States Government Employees Abroad

Section 403(a) of the ESSAA amended INA Section 101(a)(27)(D), 8 U.S.C. 1101(a)(27)(D), to change the definition of a special immigrant to include “the surviving spouse or child of an employee of the United States Government abroad: Provided, [t]hat the employee performed faithful service for a total of not less than 15 years or was killed in the line of duty.” The Department classifies each surviving spouse and child of an employee of the United States Government abroad as an SS1. While this Final Rule does not address the parameters under which a noncitizen may qualify for issuance of an SS1 immigrant visa, this rule adds these special immigrant visa classifications to 22 CFR 42.11.

D. EB-5 Program Changes

The EB-5 Reform and Integrity Act made substantial changes to Section 203(b)(5) of the INA, 8 U.S.C. 1153(b)(5). The EB-5 Reform and Integrity Act sets forth an allocation of visas to qualified immigrant investors who invest in new commercial enterprises and satisfy applicable job creation requirements. Certain percentages of these visas are reserved for investors in rural areas, investors in areas designated by the Department of Homeland Security (DHS) as high unemployment areas, and investors in infrastructure projects.

The EB-5 Reform and Integrity Act repealed the former Regional Center Program under section 610 of Public Law 102-395 and authorized a new Regional Center Program. As a result of the new legislation, the Visa Office is adding new EB-5 classification symbols. An investor in a non-regional center for an unreserved visa is classified as NU-1 and the spouse and children of an NU-1 applicant are classified as an NU-2 and NU-3, respectively. An investor in a regional center for an unreserved visa is classified as an RU-1 applicant, and the spouse and children of an RU-1 applicant are classified as an RU-2 and RU-3, respectively. An applicant for a reserved visa who is an investor in a ( printed page 45069) non-regional center in a rural area is classified as an NR-1, and the spouse and children of an NR-1 applicant are classified as an NR-2 and NR-3, respectively. An applicant for a reserved visa who is an investor in a non-regional center in an area with high unemployment is classified as an NH-1, and the spouse and children of an NH-1 applicant are classified as an NH-2 and NH-3, respectively. An applicant for a reserved visa who is an investor in a regional center in a rural area is classified as an RR-1, and the spouse and children of an RR-1 applicant are classified as an RR-2 and RR-3, respectively. An applicant for a reserved visa who is an investor in a regional center in an area of high unemployment is classified as an RH-1, and the spouse and children of an RH-1 applicant are classified as an RH-2 and RH-3, respectively. An applicant for a reserved visa who is an investor in an infrastructure project is classified as an RI-1, and the spouse and children of an RI-1 applicant are classified as an RI-2 and RI-3, respectively. The previously used visa classifications for employment fifth preference immigrant visas (C51, C52, C53, T51, T52, T53, R51, R52, R53, I51, I52, and I53) will continue to be used for EB-5 immigrant visa applicants who had petitions pending with DHS at the time of the passage of the EB-5 Reform and Integrity Act. These classification symbols and descriptions are currently in use, and merely reflect the availability of these classifications for qualified applicants. The publication of these symbols will not impact processing of visas in other categories for any current or future applicant. These classification symbols are consistent with those used by the Department of Homeland Security.

E. Technical Changes

Additionally, this rule makes a technical change to remove a reference to H2R, which is a classification symbol no longer in use. The H2R nonimmigrant visa classification was introduced by Section 402 of the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005, Public Law 109-13, as amended by Section 565 of the Consolidated Appropriations Act, 2016, Public Law 114-113. The H2R nonimmigrant visa classification was only authorized through the end of the 2016 fiscal year and has not been reauthorized.

F. Terminology

President Biden's Executive Order 14012, Executive Order on Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans (Feb. 2, 2021), affirms that the “Federal Government should develop welcoming strategies that promote integration [and] inclusion.” That Executive Order and Executive Order 14010, Creating a Comprehensive Regional Framework to Address the Causes of Migration, to Manage Migration Throughout North and Central America, and to Provide Safe and Orderly Processing of Asylum Seekers at the United States Border (Feb. 2, 2021), do not use the terms “alien” or “illegal alien” to describe migrants.

Some opinions of the Supreme Court now use the term “noncitizen” in place of “alien.” See, e.g., United States v. Palomar-Santiago, 141 S. Ct. 1615, 1619 (2021); Barton v. Barr, 140 S. Ct. 1442, 1446 n.2 (2020) (“This opinion uses the term `noncitizen' as equivalent to the statutory term `alien.' ”) (citing 8 U.S.C. 1101(a)(3)).¹ Other agencies have begun to use noncitizen in place of alien in regulations and guidance and the Department has been using noncitizen and applicant in place of alien in guidance to consular officers since mid-2021. The Department intends to gradually replace or remove references to alien as it makes other amendments to its regulations in 22 CFR parts 41, and 42, and has done so in several descriptions of its nonimmigrant and immigrant visa classifications in this rule.

Regulatory Findings

A. Administrative Procedure Act

The publication of this rule as a final rule is based upon the “good cause” exception found at 5 U.S.C. 553(b)(3)(B) and (d)(3). A rule benefits from the good cause exception when the “agency for good cause finds . . . that notice and public procedure thereon are impractical, unnecessary, or contrary to the public interest.” ^[1] The Department finds that notice and comment for this rule are unnecessary as this rule proposes no new policy or procedure. This rule merely updates the list of classification symbols found in 22 CFR 41.12 and 42.11 to more closely reflect the classifications authorized under the Immigration and Nationality Act and other federal statutes; and provides clarifying descriptions in the associated classification-specific subsections.

For this reason, this rule is excepted from the notice and comment requirements of 5 U.S.C. 553(a)(1).

B. Regulatory Flexibility Act/Executive Order 13272: Small Business

As this final rule is excepted from notice and comment rulemaking under 5 U.S.C. 553(b) and 553(a), it is exempt from the regulatory flexibility analysis requirements set forth by the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

C. 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 of State 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 involve foreign individuals, and does not directly or substantially affect state, local, or tribal governments, or businesses.

D. Congressional Review Act of 1996

This rule is not a major rule as defined in 5 U.S.C. 804. 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 Orders 12866 (Regulatory Planning and Review) and 13563 (Improving Regulation and Regulatory Review)

Executive Orders 12866 and 13563 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 of State has examined this rule considering Executive Order 13563 and has determined that the rulemaking is consistent with the guidance therein. The Department of State has reviewed this rulemaking to ensure its consistency with the regulatory philosophy and principles set forth in Executive Order 12866. The Office of ( printed page 45070) Information and Regulatory Affairs has designated this rule “significant” in accordance with E.O. 12866. There are no anticipated direct costs to the public associated with this rule.

F. Executive Orders 12372 and 13132: Federalism

This regulation will not have substantial direct effect 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.

G. Executive Order 12988: Civil Justice Reform

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

H. Executive Order 13175—Consultation and Coordination With Indian Tribal Governments

The Department of State 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 any new reporting or record-keeping requirements subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 35.

Accordingly, for the reasons stated in the preamble, and under the authority 8 U.S.C. 1104 and 22 U.S.C. 2651(a), 22 CFR parts 41 and 42 are amended as follows:

1. The authority citation for part 41 continues to read as follows:

Authority: 8 U.S.C. 1101; 1102; 1104; 1182; 1184; 1185 note (section 7209 of Pub. L. 108-458, as amended by section 546 of Pub. L. 109-295); 1323; 1361; 2651a.

2. Revise § 41.12 to read as follows:

3. Revise § 41.84 to read as follows:

4. The authority citation for part 42 is amended to read:

Authority: 8 U.S.C. 1104 and 1182; Pub. L. 105-277, 112 Stat. 2681; Pub. L. 108-449, 118 Stat. 3469; The Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (done at the Hague, May 29, 1993), S. Treaty Doc. 105-51 (1998), 1870 U.N.T.S. 167 (Reg. No. 31922 (1993)); 42 U.S.C. 14901-14954 (Pub. L. 106-279, 114 Stat. 825); 8 U.S.C. 1101 (Pub L. 117-31, 135 Stat. 309); 8 U.S.C. 1154 (Pub. L. 109-162, 119 Stat. 2960); 8 U.S.C. 1201 (Pub. L. 114-70, 129 Stat. 561).

5. Revise 42.11 to read as follows:

88 FR 45068