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 2045]

Visas: Documentation of Immigrants Under the Immigration and

Nationality Act, As Amended

AGENCY: Bureau of Consular Affairs, State.

ACTION: Final rule.

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SUMMARY: This rule amends 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.

EFFECTIVE DATE: September 6, 1994.

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 28, 1994, the Department published a proposed rule (59 FR

21948) to amend 22 CFR 42.61(a) to make explicit that the Department

has the authority to make exceptions, for policy or operational

reasons, to the general rules concerning where an application for an

immigrant visa shall be made. The period for comment on the proposal

ended on May 31, 1994.

The Department received one comment during the period. The

commenter opposed promulgation of the proposed revision on several

bases, one of which appears to derive from a misreading of the

legislative history of the 1952 Act. Accordingly, it appears that a bit

of the history of this provision may be appropriate.

The Immigration Act of 1924 did not contain a specific provision

regarding place of application for an immigration visa. Instead, it

simply authorized the Secretary of State to make regulations regarding

the ``form'' in which such applications were to be made.

For many years the Department's instructions on the subject of

place of application were included in Visa Supplement A, which

contained a series of Notes for the guidance of consular officers in

processing visa applications. As of November 1, 1940, Note 87 read as

follows:

``Aliens will ordinarily make their applications for immigration

visas to the consul in whose district they reside.

``The applications of nonquota immigrants may be accepted outside

their home districts provided they present satisfactory evidence to the

consul of their nonquota status under section 4 of the Act and of their

admissibility to the United States under the immigration laws. If such

satisfactory evidence is not produced the consul to whom the alien

applies may request the assistance of the consul in the alien's home

district in investigating the case or refer the applicant to that

consul.

``The application of quota immigrants may be accepted outside their

home districts provided--

``(1) A quota number is available or can be obtained for the

issuance of the visa.

``(2) The consul is satisfied that in issuing the visa the alien

will not be accorded undue priority over other applicants awaiting

their turns in the alien's home district.

``(3) The alien presents satisfactory evidence to the consul of his

admissibility into the United States under the immigration laws. If

such satisfactory evidence is not produced the consul may request the

assistance of the consul in the alien's home district in investigating

the case, or refer the applicant to that consul.''

In 1946 the Department promulgated formal regulations governing the

visa process. After a redesignation of the regulations in 1948, the

regulation concerning place of immigrant visa application read as

follows:

``42.317 Where immigration visa application may be made. (a) An

application for an immigration visa may be made at any American

consular office, or other office specifically designated, which has

been authorized to issue immigration visas. No consular agency may

issue immigration visas.

``(b) An alien ordinarily should make his application for an

immigration visa at the American consular office in his foreign home

district. An alien who deliberately leaves his foreign home district

for the purpose of making an application for an immigration visa

elsewhere will be referred back to the American consular office in his

home district. However, an alien may apply for an immigration visa at a

consular office outside his foreign home district if the consular

officer to whom he applies is satisfied:

``(1) That the alien has a bona-fide reason for applying outside of

his foreign home district;

``(2) Of the alien's true identity;

``(3) That the alien has no adverse record in his foreign home

district which would preclude the issuance of an immigration visa to

him; and

``(4) That the alien is in possession of all the `available'

documents which can be obtained from his home district.

``(c) In no case of an adult who is not well and favorably known to

the principal consular officer should an immigration visa be issued

outside of the alien's home foreign district without notification to,

and receipt of clearance from, the consular officer in the alien's

foreign home district, the principal consular office in the foreign

country of the alien's nationality, or the principal consular office in

the foreign country of the alien's birth, whichever is the nearest

office most likely to have a previous record regarding the alien.

``(d) For the purposes of this section an alien's foreign home

district shall ordinarily be considered as that district of a foreign

country in which the alien has a domicile, or in which he has lived for

the last five years. However, an alien who has in good faith abandoned

his domicile in his former home country without any purpose of

circumventing the immigration laws of the United States may have his

visa application accepted at an American consular office in the

district in which he may be temporarily residing or sojourning while

awaiting an opportunity to immigrate into the United States. In such

cases, however, the provisions of paragraphs (b) and (c) of this

section are applicable.

``(e) Questionable cases may be reported to the Department for a

ruling on the question of jurisdiction.''

This regulation remained in effect until promulgation of the

revised visa regulations implementing the Immigration and Nationality

Act of 1952.

The pertinent provision of the Immigration and Nationality Act--

section 222(a)--is similar to its predecessor--section 7 of the

Immigration Act of 1924--but is also different from it in very

significant ways. Unlike its predecessor, which was silent on the

subject of place of application, section 222(a) specifically authorizes

the Secretary of State to provide by regulation for place of

application. The legislative process which led to this provision is of

interest because the commenter apparently encountered a portion of it

and misunderstood what was occurring.

As introduced, both H.R. 5678 (Cong. Walter) and S. 2550 (Sen.

McCarran) included in the proposed new section INA 222(a) the following

sentence--``Such application shall be filed only with the consular

officer in whose district the applicant shall have established his

residence, except that an application for an immigrant visa under the

Displaced Persons Act of 1948, as amended, and under INA 101(a)(27) may

be filed with such consular officer as may be designated by

regulations.''

During the legislative process in the Senate, this sentence

remained unchanged and was, thus, a part of the bill when it was

approved by the Senate. In the House, however, the Judiciary Committee

approved a series of amendments to Mr. Walter's original text, one of

which (Amendment 9) deleted the sentence from H.R. 5678. The text of

Amendment 9 appears at page 2 of House Report 1365 of February 14,

1952, which accompanied H.R. 5768, and there is, at page 54 of the

Report, a paragraph which explains the amendment and the thinking of

the Committee in making it. The paragraph, in its entirety, reads as

follows:

``Amendment 9 (to sec. 222) reflects the committee's cognizance of

the unprecedented number of persons who have been uprooted and

dislocated during World War II or due to events subsequent thereto. The

amendment is designed to alleviate hardship which might be caused by a

rigid requirement that visa applications `shall be filed only with the

consular officer in whose district the applicant shall have established

his residence.' It is believed that the Secretary of State will, by

regulations provide for a more flexible requirement regarding the place

of filing of visa applications in both nonimmigrant and immigrant

cases. Existing regulations could very well serve as a pattern for the

new rules to be promulgated.''

As a result of this particular amendment, H.R. 5678, as approved by

the House of Representatives, contained no statutory provision whatever

regarding place of application. Thus, the question of how to deal with

place of application for an immigrant visa had to be disposed of in the

conference on the differing House and Senate versions. The Conference

Report on H.R. 5678--House Report 2096 of June 9, 1952--sets forth the

text of the Immigration and Nationality Act, as enacted. The sentence

establishing the restrictive rule about place of application was

dropped and the phrase ``and at such place'' was inserted in the first

sentence of section 222(a). While the Statement of Managers on the Part

of the House (at pp. 127-29 of House Report 2096) is silent on this

subject and there is no statement of the Senate managers, the

Department believes it fair to conclude that the Congress, after due

consideration of the issue, consciously decided to leave the

determination of place of immigrant visa application to the Secretary

of State and to make that decision explicit by codifying it.

The commenter contended that the purpose of the Congress was ``to

reduce the burden on displaced aliens in the visa application process''

and quoted from the House Report statement reproduced above in support

of this contention. The commenter omitted the last two sentences of the

paragraph and appears to have misunderstood the point being made.

In reality, the Committee was acting to preserve the status quo

insofar as the filing of immigrant visa applications was concerned. As

is clear from the discussion above, the ultimate outcome was to

preserve the status quo, but to make explicit the Secretary's authority

to determine by regulations the place of immigrant visa application by

codifying it in the first sentence of section 222(a) of the Act.

Thus, there is clear connection between the regulations

implementing the Immigration Act of 1924 and those implementing the

Immigration and Nationality Act, as amended. Moreover, it is clear that

the basis of the regulations simply has not been that asserted by the

commenter. The commenter sees the regulations governing place of

application as intended to benefit alien visa applicants. Quite to the

contrary, while the Department has attempted to give aliens broad

notice of the procedures that will generally apply in ``ordinary

circumstances,'' it is clear that the regulations have always been

intended for the benefit of the Government, giving it the flexibility

to decide where immigrant visa applications will be processed. This

flexibility has traditionally been important for two significant

reasons.

First, there has always been a profound concern that an alien not

avoid meaningful examination of his or her admissibility by having the

visa application processed by a consular office in an area remote from

his or her country of residence. Insofar as the constraints in the

resources of a particular consular office render knowledgeable

assessment of the application more difficult, the workload management

issues discussed below are also relevant here.

Second, the Department has always had major concerns about the

management of the consular function. There has never been a time when

the Department has not had constraints on its resources. Consular

staffing has been subject to those constraints as has every other

aspect of the Department's operations. For that reason, it has always

been of great importance to the Department both to have the authority

to apportion available resources in a manner responsive to the level of

demand for services and to have a basis for predicting levels of

demand. The ability to specify where intending immigrants will be

authorized to apply for an immigrant visa is crucial from both points

of view.

In addition, it is noteworthy that the Department frequently has to

adjust its handling of the visa workload because of world events. The

statutory scheme, by leaving the place of application to be determined

under Departmental regulations, allows this flexibility.

The commenter also expressed concern about the fact that the

current regulation allows for the processing of an application by a

consular office in an area where the alien is physically present but

has no residence if the alien ``expects'' to remain in the area

throughout the necessary processing time while the proposed regulation

would require the alien to establish his or her ability to remain there

for that time. The commenter sees that change as being of major

significance.

The Department believes that this concern ignores reality and that

the change in wording merely reflects that reality. A consular officer

will not ordinarily accept an alien's assertion that he or she expects

to remain in the area for the requisite period of time without a basis

for believing the assertion to be true. Thus, the consular officer will

ordinarily inquire further into the matter if the alien merely makes

the bald assertion with no explanation for its basis. Moreover, it is

the Department's position that a consular officer may properly decline

to accept the application for processing if it reasonably appears that

the alien's asserted expectation is unrealistic or otherwise ill-

founded.

In light of the foregoing, the Department believes that the

proposed change in wording does not have the significance the commenter

apparently has ascribed to it.

The commenter asserts that incorporation into the proposed

regulation of the phrase ``Unless otherwise directed by the

Department'' has the effect of rendering the regulation meaningless.

The Department strongly disagrees.

As pointed out in the commentary accompanying the proposed rule,

the Department's position is that it has always had the authority

reflected in this phrase and that this proposal does nothing more than

make explicit what has always been implicit. Moreover, this comment

presumes that the Department has in the past made, or intends in the

future to make, frivolous use of this authority. The Department can

find nothing objectionable in the establishment of a general rule,

which will apply and guide consular officers in all normal

circumstances, but which may be modified by the Department as necessary

in those situations in which operational or policy considerations

require it.

Finally, the commenter has asserted that the first and second

sentences of the proposed regulation have the effect of requiring that

an alien permitted to apply at the consular office in the area in which

he or she is physically present also apply at the consular office in

the area of the alien's residence. The Department wishes to ensure the

commenter that it had no intention of producing such a state of

affairs.

A review of prior versions of this regulation indicates that, prior

to the 1987 recodification of the visa regulations, the concepts now

set forth in several shorter sentences were included in a single long

compound sentence. It is apparently the division of the regulations

into shorter sentences which has created the doubt in the commenter's

mind about the Department's intentions here. Accordingly, the

Department has decided that the first two sentences of the proposed

text should be editorially amended to read as follows:

``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; except that,

unless otherwise directed 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.''

While there appears to have arisen a general prejudice against the

compound sentence in recent years, the Department trusts that, in this

case, it will be seen as clarifying rather than obscuring the issue.

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 E.O. 12778 and certified to be in compliance therewith.

This rule is exempt from review under E.O. 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, 22 CFR Part 42 is amended as follows:

PART 42--[AMENDED]

1. The authority citation for Part 42 continues to read:

Authority: 8 U.S.C. 1104; 8 U.S.C. 1202.

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; except that, unless

otherwise directed 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: August 1, 1994.

Mary A. Ryan,

Assistant Secretary for Consular Affairs.

[FR Doc. 94-19090 Filed 8-4-94; 8:45 am]

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