# Visas: Documentation of Immigrants Under the Immigration and Nationality Act, as Amended > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A94-10121 ## Record - **Collection:** Federal Register - **Document type:** Uncategorized Document - **Published:** April 28, 1994 ## Text 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. ----------------------------------------------------------------------- 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] BILLING CODE 4710-06-P --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A94-10121. Public record. Not legal advice.