Visas: Documentation of Nonimmigrants Under the Immigration and Nationality Act; Waiver by Secretary of State and Attorney General of Passport and/or Visa Requirements for Certain Categories of Nonimmigrants

DEPARTMENT OF STATE

Bureau of Consular Affairs

22 CFR Part 41

[Public Notice 1931]

Visas: Documentation of Nonimmigrants Under the Immigration and

Nationality Act; Waiver by Secretary of State and Attorney General of

Passport and/or Visa Requirements for Certain Categories of

Nonimmigrants

AGENCY: Bureau of Consular Affairs, DOS.

ACTION: Final rule.

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SUMMARY: This final rule authorizes the District Director of the

Immigration and Naturalization Service to exercise the Department of

State's function with respect to the waiver of the passport and/or visa

requirement under the provisions of section 212(d)(4)(A) of the

Immigration and Nationality Act (INA). The rule eliminates time

consuming procedures for obtaining the concurrence of passport and/or

visa waivers, and benefits certain nonimmigrant aliens who, because of

unforeseen circumstances, are subjected to delays when seeking

admission to the United States without the required documents.

EFFECTIVE DATE: January 11, 1994.

FOR FURTHER INFORMATION CONTACT: Stephen K. Fischel, Chief, Legislation

and Regulations Division, Visa Services, Washington, DC, (202) 663-

1204.

SUPPLEMENTARY INFORMATION: On July 30, 1991, the Department of State

published a Notice of Proposed Rulemaking (NPRM) at 56 FR 36029. The

rule proposed to amend part 41, Sec. 41.2(j), which provided for the

waiver of the passport and/or visa requirement by the District Director

of the Immigration and Naturalization Service (INS) at the port of

entry, with the concurrence of the designated State Department

official, if such officials were satisfied that the nonimmigrant alien

was unable to obtain the required documentation because of an

unforeseen emergency. This final rule authorizes the District Director

of the Immigration and Naturalization Service at the port of entry to

exercise the Department of State's function with respect to the waiver

of the passport and/or visa requirement under the provisions of INA

212(d)(4)(A).

Comment

During the comment period the Department received only one comment.

The commenting organization noted that under the proposed regulations

nonimmigrants who are ``unable to obtain'' the required documents may

benefit from such a waiver. The commenter suggested that the proposed

language be amended to read ``unable to present'' the required

documents.

A review of the historical files reveals that the language in

question has been in use since at least 1958. The focus at that time

was on fact patterns in which the alien indeed could not for

geographical, political, and other reasons obtain the required

documents. Circumstances have changed radically since that time. The

Department believes that the recommendation to change the word

``obtain'' to read ``present'' has merit as it more accurately reflects

current world circumstances and the intent of the statute. In order to

gain admission to the United States an alien must present the required

pertinent documentation, whether one has the ability or not to obtain

such. Absent such documentation, the immigration officer in charge at

the port of entry must decide whether the applicant for admission is

indeed qualified for the desired nonimmigrant visa classification and

whether the inability to present the required documentation was due to

an unforeseen emergency.

Furthermore, the Department wishes to clarify the limited extent of

the authority delegated to the Immigration and Naturalization Service.

Although the proposed rule permits the District Director to waive the

documentary requirements of INA 212(a)(7)(B), the Department of State

will continue to exercise the authority vested in the Secretary of

State and the Attorney General under the provisions of INA 212(d)(4)(A)

relating to the joint concurrence in documentary waivers, except in the

circumstances described in Sec. 41.2(j) of this final rule.

Consequently, this final rule makes minor modifications to the text of

the regulation as discussed in the preamble.

This final rule is not considered to be a major rule for purposes

of E.O. 12291 nor is it 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 does not impose

information collection requirements under the provisions of the

Paperwork Reduction Act of 1980. This rule has been revised as required

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

List of Subjects in 22 CFR Part 41

Aliens, Documentation, Nonimmigrants, Passport and visas, Waivers.

Accordingly, 22 CFR part 41 is amended as follows:

PART 41--[AMENDED]

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

Authority: Sec. 104, 66 Stat. 174, 8 U.S.C. 1104; Sec.

109(b)(1), 91 Stat. 847.

2. In Sec. 41.2, paragraph (j) is revised 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) Individual cases of unforeseen emergencies. A visa and passport

are not required of an alien 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 in

charge of the port of entry concludes that the alien is unable to

present the required documents because of an unforeseen emergency. Any

waiver of the visa or passport requirement may be granted by the INS

district director pursuant to INA 212(d)(4)(A) without the prior

concurrence of the Department of State in each case in which the

district director concludes that the alien's claim of emergency

circumstances is legitimate and bona fide and that approval of the

waiver would be appropriate under all of the attendant facts and

circumstances.

* * * * *

Dated: January 5, 1994.

Mary A. Ryan,

Assistant Secretary for Consular Affairs.

[FR Doc. 94-645 Filed 1-10-94; 8:45 am]

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