Waiver of Certain Types of Visas

DEPARTMENT OF JUSTICE

8 CFR Part 212

[INS No. 1225-92]

RIN 1115-AB40

Waiver of Certain Types of Visas

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Final rule.

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SUMMARY: This rule amends the Immigration and Naturalization Service

(Service) regulations to permit district directors, acting alone, to

waive a nonimmigrant visa or passport under section 212(d)(4)(A) of the

Immigration and Nationality Act in individual cases, if satisfied that

a nonimmigrant alien is unable to present these documents because of an

unforeseen emergency. Formerly, in such circumstances the district

director was required to seek concurrence of the Department of State

Visa Office to grant a waiver of the nonimmigrant visa or passport. In

eliminating the step of seeking concurrence on each waiver, this

amendment will save resources for both agencies and reduce the time it

takes to admit certain nonimmigrant aliens.

EFFECTIVE DATE: January 11, 1994.

FOR FURTHER INFORMATION CONTACT:

Diane Hinckley, Assistant Chief Inspector, Inspections Division,

Immigration and Naturalization Service, 425 I Street NW., room 7228,

Washington, DC 20536, telephone number (202) 616-7493.

SUPPLEMENTARY INFORMATION: Section 212(d)(4)(A) of the Immigration and

Nationality Act allows the Secretary of State and the Attorney General,

acting jointly, to waive a nonimmigrant alien's visa or passport when

an alien is unable to present the required documents due to an

unforeseen emergency. Previously, when such a nonimmigrant appeared at

a port of entry, the Immigration and Naturalization Service district

director was required to seek the concurrence of the Department of

State Visa Office prior to granting the waiver. Pursuant to the

authority delegated to the Commissioner of the Immigration and

Naturalization Service by title 8 U.S.C. section 103 and to the

Director of the Visa Office of the Department of State by title 8

U.S.C. section 104, the Commissioner and the Director of the Visa

Office, acting jointly, determined that the previous procedure was

unnecessarily burdensome. Officers of the Department of State concurred

with the recommendations from the ports of entry in over 95% of the

cases presented. Having the district director exercise the function of

the Department of State Visa Office simultaneously with the function

assigned to the Immigration and Naturalization Service will save

resources for both agencies and result in a quicker admission of the

alien. If the district director is satisfied that the alien failed to

present a passport or a visa because of an unforeseen emergency and

that the alien should be granted the waiver, then the procedure at the

ports of entry will remain the same. The alien will fill out an

application for the waiver, the information will be checked, and a fee

will be charged. The Department of State is promulgating a similar

regulation that amends Sec. 41.2 of title 22, Code of Federal

Regulations.

The Immigration and Naturalization Service (The Service) published

a proposed rule, with a request for comments, in the Federal Register

on July 30, 1991, at 56 FR 36028, amending 8 CFR 212.1(g). The comment

period ended on August 29, 1991. The Service received three comments.

One commentor endorsed the rule's practicality but recommended a change

in language in the phrase ``unable to obtain the required documents''

so that it reads ``unable to present the required documents''. The

Service agrees that the change improves the rule by allowing waivers to

be granted in cases where the alien possesses the required documents

but cannot produce them at the port of entry. This change is

incorporated in the final rule.

Another commentor expressed concern that language in the proposed

regulation might mislead a reader to think that the Service will seek

concurrence from the Visa Office without first determining that the

alien is entitled to a waiver of documents. Such a procedure would be a

deviation from the Service's past practice rather than a continuation

of it, as the Service intends, except for eliminating the step of

seeking concurrence from the Department of State Visa Office. Language

in the final rule has been changed to clarify this point.

Another commentor noted that transportation companies cannot board

an alien passenger traveling in emergency circumstances who lacks the

required documents without incurring a fine at the port of entry. The

commentor recommended adding a provision to the rule which would

specify the steps a carrier must take to board such a passenger without

incurring a fine. This rule is not intended to expand the circumstances

under which an alien may apply for a waiver of documents, only to

simplify the administrative procedure for granting a waiver, and

therefore the recommendation will not be incorporated into the final

rule.

In accordance with 5 U.S.C. 605(b), the Commissioner of the

Immigration and Naturalization Service certifies that this rule will

not have a significant adverse economic impact on a substantial number

of small entities. This rule merely reflects an agreement reached

between the Department of State and the Immigration and Naturalization

Service that results in a less burdensome administrative procedure. In

addition, members of the public are serviced in a more expeditious

manner as a result of the effect of this rule.

This rule is not significant within the meaning of section 3(f) of

E.O. 12866, nor does this rule have Federalism implications warranting

the preparation of a Federalism Assessment in accordance with E.O.

12612.

The information collection requirement contained in this rule has

been cleared by the Office of Management and Budget under the

provisions of the Paperwork Reduction Act. The OMB control number for

this collection is contained in 8 CFR 299.5.

List of Subjects in 8 CFR Part 212

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

Accordingly, part 212 of chapter I of title 8 of the Code of

Federal Regulations is amended as follows:

PART 212--DOCUMENTARY REQUIREMENTS: NONIMMIGRANTS; WAIVERS;

ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE

1. The authority citation for part 212 continues to read as

follows:

Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1225, 1226,

1228, 1252; 8 CFR part 2.

2. In Sec. 212.1, the first two sentences in paragraph (g) are

revised to read as follows:

Sec. 212.1 Documentary requirements for nonimmigrants.

* * * * *

(g) Unforeseen emergency. A visa and a passport are not required of

a nonimmigrant who, either prior to his or her embarkation at a foreign

port or place or at the time of arrival at a port of entry in the

United States, satisfies the district director at the port of entry

that, because of an unforeseen emergency, he or she is unable to

present the required documents, in which case a waiver application

shall be made on Form I-193. The district director may approve a waiver

of documents in each case in which he or she is satisfied that the

nonimmigrant cannot present the required documents because of an

unforeseen emergency and the waiver would be appropriate in the

circumstances. * * *

* * * * *

Dated: January 5, 1994.

Doris Meissner,

Commissioner, Immigration and Naturalization Service.

[FR Doc. 94-646 Filed 1-10-94; 8:45 am]

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