Visas: Documentation of Immigrants Under the Immigration and Nationality Act, as Amended

DEPARTMENT OF STATE

Bureau of Consular Affairs

22 CFR Part 42

[Public Notice 1995]

Visas: Documentation of Immigrants Under the Immigration and

Nationality Act, as Amended

AGENCY: Bureau of Consular Affairs, Department of State.

ACTION: Amended notice of proposed rule.

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SUMMARY: This document withdraws the proposed rule published on April

15, 1994 (59 FR 18010) on the subject of the place of application for

an immigrant visa and replaces it with a new proposed rule. This

proposed rule would amend immigrant visa regulations to make clear that

the Department has the authority to determine where an alien's

immigrant visa application shall be processed and to revise the text

thereof for clarity and consistency of usage.

DATES: Written comments must be received on or before May 31, 1994.

ADDRESSES: Interested persons are invited to submit comments in

duplicate to: Director, Office of Legislation, Regulations, and

Advisory Assistance, Visa Office, Department of State, Washington, DC,

20522-0113.

FOR FURTHER INFORMATION CONTACT: Cornelius D. Scully, III, Director,

Office of Legislation, Regulations, and Advisory Assistance, Visa

Office, (202) 663-1184.

SUPPLEMENTARY INFORMATION: On April 15, 1994, the Department published

a notice of proposed rule (59 FR 18010). Due to problems which occurred

in converting the draft document from one computer system to another,

certain revisions to the document were not incorporated into the

version which was sent for publication. The Department is, therefore,

withdrawing the the April 15, 1994 proposed rulemaking which revised 22

CFR 42.61(a) and is hereby publishing the revised proposed rule.

22 CFR 42.61 is that portion of the Department's immigrant visa

regulations which establishes rules for determining at which consular

office an alien shall make his or her immigrant visa application.

Currently, the first sentence of subsection (a) of Sec. 42.61 specifies

that ``in ordinary circumstances'' an alien's application shall be

processed and adjudicated by the consular office having jurisdiction

over the alien's place of residence. The second sentence allows for an

exception to this general rule in the case of an alien physically

present in an area but not having a residence therein, if the alien can

establish that he or she will remain in the area long enough to permit

the application to be processed to a conclusion. The remainder of 22

CFR 42.61(a) allows for acceptance of immigrant visa applications by

other consular offices, either as a matter of discretion or at the

direction of the Department.

It is the Department's view that the existing regulatory text

affords the Department the authority to make exceptions to the general

rules concerning where an application for an immigrant visa shall be

made for policy or operational reasons, including reasons of foreign

policy, as may be necessary. Recently, however, questions have been

raised whether such authority can properly be so imputed, given the

phrasing of the text. Since these questions have been raised, the

Department believes it to be appropriate to amend the text to make this

authority explicit. In addition, the Department is taking the occasion

to revise the text editorially for purposes of clarity and consistency

of usage.

The Department notes that this regulatory change is both

interpretive and concerned with management and matters of foreign

policy. The Department has nevertheless decided to provide for a

thirty-day comment period.

This rule is not expected to have a significant impact on a

substantial number of small entities under the criteria of the

Regulatory Flexibility Act. In addition, this rule would not impose

information collection requirements under the provisions of the

Paperwork Reduction Act of 1980. This rule has been reviewed as

required under Executive Order 12778 and certified to be in compliance

therewith. This rule is exempt from review under Executive Order 12866,

but has been reviewed internally by the Department to ensure

consistency with the objectives thereof.

List of Subjects in 22 CFR Part 42

Aliens, Application, Immigrants, Visas.

Accordingly, it is proposed to amend 22 CFR Part 42 as follows:

PART 42--[AMENDED]

1. The authority citation for Part 42 would be revised to read as

follows:

Authority: 8 U.S.C. 1104.

2. Section 42.61 is amended by revising paragraph (a) to read as

follows:

Sec. 42.61 Place of application.

(a) Alien to apply in consular district of residence. Unless

otherwise directed by the Department, an alien applying for an

immigrant visa shall make application at the consular office having

jurisdiction over the alien's place of residence. Also, unless

otherwise provided by the Department, an alien physically present in an

area but having no residence therein may make application at the

consular office having jurisdiction over that area if the alien can

establish that he or she will be able to remain in the area for the

period required to process the application. Finally, a consular office

may, as a matter of discretion, or shall, at the direction of the

Department, accept an immigrant visa application from an alien who is

neither a resident of, nor physically present in, the area designated

for that office for such purpose. For the purposes of this section, an

alien physically present in the United States shall be considered to be

a resident of the area of his or her last residence prior to entry into

the United States.

* * * * *

Dated: April 21, 1994.

Mary A. Ryan,

Assistant Secretary for Consular Affairs.

[FR Doc. 94-10121 Filed 4-26-94; 8:45 am]

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