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 1989]

Visas: Documentation of Immigrants Under the Immigration and

Nationality Act, as Amended

AGENCY: Bureau of Consular Affairs, Department of State.

ACTION: Notice of proposed rule.

-----------------------------------------------------------------------

SUMMARY: This notice proposes to 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 16, 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: 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 have his or her

immigrant visa application processed and adjudicated. Currently, the

first sentence of paragraph (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

implicitly confers upon the Department the authority to make exceptions

to the general rules for policy or operational reasons, including

reasons of foreign policy, as may be necessary. Recently, however,

questions have been raised whether such authority actually 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.

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 designated

by the Department as responsible for processing immigrant visa

applications by aliens resident in the area of the alien's place of

residence. Also, an alien physically present in an area but having no

residence therein may make application at the consular office

designated for the purpose for that area if the alien 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.

* * * * *

Mary A. Ryan,

Assistant Secretary for Consular Affairs.

[FR Doc. 94-8997 Filed 4-14-94; 8:45 am]

BILLING CODE 4710-06-P