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

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URL: https://www.frixlaw.com/law-library/documents/fr%3A94-19090

## Record

- **Collection:** Federal Register
- **Document type:** Uncategorized Document
- **Published:** August 5, 1994

## Text

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]
BILLING CODE 4710-06-P

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A94-19090. Public record. Not legal advice.