Visas: Documentation of NonimmigrantsPassport and Visa Waivers; Deletion of Obsolete Visa Procedures and Other Minor Corrections

[Federal Register Volume 64, Number 103 (Friday, May 28, 1999)]
[Rules and Regulations]
[Pages 28915-28916]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-13537]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF STATE

22 CFR Parts 41 and 42

[Public Notice 3048]


Visas: Documentation of Nonimmigrants--Passport and Visa Waivers; 
Deletion of Obsolete Visa Procedures and Other Minor Corrections

AGENCY: Bureau of Consular Affairs, Department of State.

ACTION: Final Rule.

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

SUMMARY: This rule revises the Department's regulations regarding the 
waiver of the passport and nonimmigrant visa requirement for aliens 
applying for entry to the United States in an unforeseen emergency. 
This revision is necessary to make clear that the passport and/or visa 
are required but, in cases of unforeseen emergency, the alien may apply 
for a waiver.
    This rule also removes the Department's regulation regarding the 
transfer of nonimmigrant visas in light of the Department's decision to 
treat a request for the transfer of a visa to a new travel document as 
an application for a new visa.
    Finally, this rule corrects an existing regulation relating to 
aliens traveling with extended-validity immigrant visas to make clear 
that a consular officer need reinterview only aliens who intend to 
enter the United States more than six months after the date of visa 
issuance.

EFFECTIVE DATE: May 28, 1999.

FOR FURTHER INFORMATION CONTACT: H. Edward Odom, Chief, Legislation and 
Regulations Division, Visa Services, (202) 663-1204.

SUPPLEMENTARY INFORMATION:

Waiver of Passport and Visa

    The Department's regulation at 22 CFR 41.2(j), as currently worded, 
incorrectly implies that a passport and visa are not required where an 
alien is applying for admission in cases of unforeseen emergency. In 
fact, INA 212(a)(7)(B)(i) does require a passport and visa, however, 
INA 212(d)(4) provides for a waiver of this requirement in certain 
specified circumstances. Under the provisions of INA 212(d)(4), the 
Attorney General and the Secretary of State, acting jointly, may waive 
the passport and/or visa requirements of INA 212(a)(7)(B)(i) on the 
basis of an unforeseen emergency. On January 11, 1994 [59 FR 1473], the 
Department of State published a rule that authorized the district 
director of the Immigration and Naturalization Service to exercise the 
Department of State's function with respect to the passport and visa 
waiver under the provisions of INA 212(d)(4)(A). The Department makes 
clear in this rule that only if the alien applies for and is granted 
such a waiver by the INS district director may an alien be admitted to 
the United States without a passport and/or visa.

Transfer of Nonimmigrant Visas

    The Department's regulation at 22 CFR 41.114 addresses the transfer 
of a valid nonimmigrant visa from one travel document to another. In 
accordance with this regulation, the consular officer could transfer a 
visa without fee to a different travel document if the visa remained 
valid and the consular officer determined that the applicant remained 
eligible. In fact, such cases are technically reapplications since 
consular officers readjudicate the case to determine the alien's 
eligibility to receive a visa and, if the alien is eligible, issue an 
entirely new visa. It is appropriate for the Department to charge a 
processing fee for such readjudication, as well as any applicable 
reciprocity fee. The Department, therefore, is removing the regulation 
concerning transfer of visas. Applicants who do not wish to apply for 
new visas, may travel with their old, but still valid visas, and a 
valid passport.

Extended Visa Validity

    On May 21, 1997 [62 FR 27693], the Department amended 42.72(e)(4) 
to reflect the new immigrant visa validity of 6 months. In updating 
this regulation, the addition of the word ``no'' unintentionally 
changed the meaning of this regulation which, as amended, implied that 
an alien must appear for a second interview before traveling to the 
United States even if the alien is traveling within the six-month visa 
validity. This was not the Department's intent. This rule corrects this 
error.

Regulatory Analysis and Notices

Final Rule

    The Department is publishing this rule as a final rule under the 
``good cause'' exceptions set forth at 5 U.S.C. 553(b)(3) and 
553(d)(3). The clarification of the waiver requirement is necessary to 
conform to the INS regulation and practice. The abolition of 
transferred visas reflects the costs of processing a machine-readable 
visa for the new document, and the law now requires a fee for such 
service. The clarification of the period before a second visa interview 
is required benefits the applicant.

[[Page 28916]]

The Regulatory Flexibility Act

    Pursuant to section 605 of the Regulatory Flexibility Act, the 
Department has assessed the potential impact of this rule, and the 
Assistant Secretary for Consular Affairs hereby certifies that it is 
not expected to have a significant economic impact on a substantial 
number of small entities.

E.O. 12988 and E.O. 12866

    The Department has reviewed this rule as required under E.O. 12998 
and determined it to be in compliance therewith. This rule is exempt 
from review under E.O. 12866, but the Department has reviewed the rule 
internally to ensure consistency therewith. The rule does not directly 
or indirectly affect states or local governments or Federal 
relationships and does not create unfunded mandates.

5 U.S.C. Chapter 8

    As required by 5 U.S.C., chapter 8, the Department has screened 
this rule and determined that it is not a major rule, as defined in 5 
U.S.C. 80412.

Paperwork Reduction Act

    This rule imposes no paperwork requirements.

List of Subjects in 22 CFR Parts 41 and 42

    Aliens, Immigrants, Nonimmigrants, Passports and visas, Waivers.

    In view of the foregoing, the Department amends 22 CFR parts 41 and 
42 as follows:

PART 41--[AMENDED]

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

    Authority: 8 U.S.C. 1104.

    2. Amend Sec. 41.2 to revise paragraph (j) to read as follows:


Sec. 41.2  Waiver by Secretary of State and Attorney General of 
passport and/or visa requirements for certain categories of 
nonimmigrants.

* * * * *
    (j) Except as provided in paragraphs (a) through (i) and (k) 
through (m) of this section, all aliens are required to present a 
valid, unexpired visa and passport upon arrival in the United States. 
An alien may apply for a waiver of the visa and passport requirement 
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 (INS) in charge of the port of entry concludes 
that the alien is unable to present the required documents because of 
an unforeseen emergency. The INS 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 
district director concludes that the alien's claim of emergency 
circumstances is legitimate and that approval of the waiver would be 
appropriate under all of the attendant facts and circumstances.
* * * * *


Sec. 41.114  [Removed]

    3. Remove Sec. 41.114.

PART 42--[AMENDED]

    4. The authority citation for part 42 continues to read as follows:

    Authority: 8 U.S.C. 1104.


Sec. 42.72  [Amended]

    5. Amend Sec. 42.72, paragraph (e)(4) by deleting the word ``no'' 
in the first sentence.

    Dated: April 30, 1999.
Mary A. Ryan,
Assistant Secretary for Consular Affairs.
[FR Doc. 99-13537 Filed 5-27-99; 8:45 am]
BILLING CODE 4710-06-P