Visas: Documentation of Immigrants Under Section 132 of Public Law 101-649, as Amended

DEPARTMENT OF STATE

Bureau of Consular Affairs

22 CFR Part 43

[Public Notice 2163]

Visas: Documentation of Immigrants Under Section 132 of Public

Law 101-649, as Amended

AGENCY: Bureau of Consular Affairs, Department of State.

ACTION: Interim rule, with request for comments.

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

SUMMARY: Pub. L. 103-416, the Act of October 25, 1994, the Immigration

and Nationality Technical Corrections Act of 1994, further amends

section 132 of Public Law 101-649 to authorize the issuance during

Fiscal Year 1995 of those immigrant visas authorized during the three

fiscal years of the Transitional Diversity Program but not used during

that period. The amendments became effective upon signature and the

available visas are to be issued during the Fiscal Year now in

progress. Accordingly, the Department is promulgating an interim rule

in order to create a basis for initiating the necessary processing and

inviting comments.

DATES: This rule is effective February 8, 1995. Interested persons are

invited to [[Page 7444]] submit written comments on or before March 10,

1995.

ADDRESSES: Written comments, with a reference to this rule to ensure

proper and timely handling, may be submitted in duplicate to the

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, Bureau of

Consular Affairs, (202) 663-1184.

SUPPLEMENTARY INFORMATION:

General

Section 217 of Pub. L. 103-416 amends section 132 of Pub. L. 101-

649 to extend the life of the provision through fiscal year 1995.

Section 132 provided for the issuance of specified amounts of immigrant

visas during fiscal years 1992, 1993, and 1994. This program came to be

known as the AA-1 program, from the entry code used by INS to identify

for statistical purposes admissions of aliens who qualified under the

program. Natives of specified countries were authorized to compete for

consideration during each of the three years by applying during an

application period established for each of the years. The annual

limitation was set at 40,000 with not less than 40%--16,000--reserved

for natives of Ireland.

Section 132 was amended to modify the provision in several respects

for the second and third years. Pertinent here were amendments which

authorized the total of visas unused in the first or second fiscal year

to be added to the total for the second or third year, as applicable,

and which authorized the total reserved for natives of Ireland to be

increased in the second and third years by the shortfall in usage by

natives of Ireland in the preceding year.

Section 217 of Pub. L. 103-416 further extends this program but

does so in a very limited way. First, the numerical limitation for

fiscal year 1995 is established as solely the total of immigrant visas

unused in the program during fiscal year 1994. There is no new annual

limitation of 40,000.

Second, aliens entitled to compete for the available visas will be

limited to those who are natives of countries qualified under this

program who also have applied for consideration under the new Diversity

Lottery provided for in section 203(c) of the Immigration and

Nationality Act, as amended, and in section 42.33 of Title 22, United

States Code. There will be no new mail-in period to allow aliens to

apply to compete for the visas available under this extension.

Finally, aliens entitled to compete for the AA-1 program numbers

available during fiscal year 1995 will not have to present evidence of

a firm commitment for employment in the U.S., but will be subject to

the requirement established by section 203(c)(2) for applicants under

the Diversity Lottery--a showing that they have at least a high school

education or its equivalent or that, within the preceding five years,

they have had at least two years of work experience in an occupation

requiring at least two years of training or experience.

Numerical Limitation and Its Apportionment

As pointed out above, the numerical limitation for fiscal year 1995

is limited to the number of immigrant visas which were available during

the previous fiscal years but not used during those years. The total

unused was 1,404. Thus, during fiscal year 1995 1,404 visas will be

available to natives of qualifying countries.

Now, the apportionment of that total is interesting. Section 132(c)

specifies that a minimum of 40 percent of a fiscal year limitation

shall be made available to natives of the foreign state which received

the greatest number of visas under the program established by section

314 of the Immigration Reform and Control Act. That same section, as

amended, also provides that, if usage of visas by natives of that

foreign state falls short of the total available in a fiscal year, the

amount of shortfall is to be added to the 40 percent minimum during the

next fiscal year.

The foreign state so described was Ireland. Application of the

above rules to the available numbers produces the following results--

40 percent of 1404=562 (rounded to the nearest whole number)

Visas reserved for natives of Ireland, FY 94--22,555

Visas actually used by natives of Ireland, FY 94--21,804

Shortfall for FY 94--751

Visas available for natives of Ireland, FY 95--562+751=1,313

Visas available for natives of other qualifying countries--91.

Section 217 also provides that any visas available to natives of

countries other than Ireland are to be distributed among the regions

established under the Diversity Lottery in proportion to the usage by

region of visas under the AA-1 program during fiscal years 1992 and

1993. Regionally, the usage during the two fiscal years cited was

distributed as follows:

Europe--85.93%

Asia--11.51%

South America, Mexico, Central America, and the Caribbean--2.02%

Africa--0.54%

It will be noted that two of the six regions established for

Diversity Lottery purposes are not listed above--North America and

Oceania. No countries in the Oceania region qualified for participation

in the AA-1 program and, thus, usage of visas by natives of countries

in that region was necessarily zero.

The omission of North America has a different basis. The only two

countries in the region are Canada and the Bahamas. Canada was a

country which qualified for the AA-1 program in fiscal year 1993,

although not in fiscal year 1992. On the other hand, Canada does not

qualify for participation in the DV-1 lottery and, thus, the Bahamas is

the only country in the North America Region which does qualify. The

Bahamas was not, however, a country which qualified to participate in

the AA-1 program. For this reason, natives of the Bahamas who applied

for the DV-1 lottery could not be issued AA-1 visas under this carry-

over provision. Accordingly, the Department did not take into account

usage by North America in determining how to apportion the 91 visas

available for natives of AA-1 countries other than Ireland.

Apportioning the 91 visas among the four regions in accordance with

the percentages indicated above produces the following numbers--

Europe--78

Asia--10

South America, Mexico, Central America, and the Caribbean--2

Africa--1

Selection of Immigrants

Small as the numbers of visas available under this provision are,

the question of how to select recipients has been troublesome. Section

217 itself prohibits any separate mail-in to compete for these visas

and requires that recipients be selected from among those who applied

to compete for selection in the fiscal year 1995 Diversity Lottery. By

the time section 217 was enacted, the mail-in period for that lottery

was complete, the computer-generated random selection had been made and

notifications had been sent to the winners. The Department's decision

as to how to handle selection of the recipients of these visas has been

heavily influenced by that fact.

First, as to non-Irish competitors for these visas, the number of

registrants for [[Page 7445]] the Diversity Lottery is so large

compared to the visas available that it will not be necessary to go

beyond those already registered and notified of their qualification to

compete in the Diversity Lottery. The Department envisions that the

visas available for each region will be made available according to

regional rank order numbers to natives of AA-1 qualifying countries who

are determined to be ineligible to receive a DV-1 visa under section

212(a)(6)(C) or 212(e), or who could not obtain a DV-1 visa because of

the regional or percentage limitation.

The situation regarding Irish Diversity Lottery applicants is

rather different. The number of aliens registered for the Diversity

Lottery who could compete for the 1,313 Irish visas is only 2,416--

2,151 from the Republic of Ireland; 265 from Northern Ireland. [In the

AA-1 program, Northern Ireland was required by law to be treated as

part of Ireland. In the Diversity Program, Northern Ireland is required

by law to be treated as a separate foreign state.] Given the very high

percentage of natives of Ireland who were registered for visas under

the AA-1 program but failed to pursue their applications, the

Department believes that it is necessary to register additional Irish

applicants beyond those registered for the DV-1 program for the express

purpose of producing a pool of Irish applicants sufficient to ensure

use of all the AA-1 visa numbers carried over from the previous fiscal

years.

Accordingly, the Department is registering an additional quantity

of natives of Ireland beyond those registered for competition for the

Diversity visas. These applicants will not compete for Diversity visas

as their rank order numbers will not justify permitting them to do so.

They will, however, compete for the 1,313 AA-1 visas carried over to

the current fiscal year.

Interim Rule

The implementation of this rule, with provision for post-

promulgation public comments, is based upon the ``good cause''

exception found at 5 U.S.C. 553 (b)(B) and 553(d)(3). The amendments

authorizing the Department to continue issuing visas under the

Transitional Diversity Program throughout fiscal year 1995 took effect

October 25, 1994.

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 43

Aliens, Immigrants, Numerical limitations, Registration, Visas.

Accordingly, title 22, part 43 of the Code of Federal Regulations,

is amended as follows:

PART 43--[AMENDED]

1. The authority citation for part 43 is revised to read:

Authority: 8 U.S.C. 1104; 8 U.S.C. 1153 note, 108 Stat. 4315.

2. Part 43 is amended by adding a new subpart C to read as follows:

Subpart C--Documentation of Immigrants Under Section 217 of Public Law

103-416

Sec.

43.21 General.

43.22 Definitions.

43.23 Eligibility for consideration.

43.24 Order of consideration.

43.25 Numerical limitations.

43.26 Fees.

43.27 Eligibility to receive a visa.

Sec. 43.21 General.

Except as specifically provided in this subpart, the provisions of

the Immigration and Nationality Act, as amended, and of parts 40 and 42

of this chapter shall apply to application for, consideration of, and

issuance or refusal of, immigrant visas under section 217 of Pub. L.

103-416.

Sec. 43.22 Definitions.

The definitions set forth in paragraphs (a), (c) and (d) of

Sec. 43.12 shall apply to application for, consideration of, and

issuance or refusal of, immigrant visas under section 217 of Pub. L.

103-416.

Sec. 43.23 Eligibility for consideration.

(a) Natives of adversely affected foreign states other than

Ireland. Natives of adversely affected foreign states other than

Ireland shall be eligible for consideration for issuance of a visa

under this subpart only if they have been registered for consideration

for issuance of a visa during fiscal year 1995 under section 203(c) of

the Immigration and Nationality Act, as amended.

(b) Natives of Ireland. Natives of Ireland, as that country is

defined in Sec. 43.12(d) shall be eligible for consideration for

issuance of a visa under this 103-416.

(1) They have been registered for consideration for issuance of a

visa under section 203(c) of the Immigration and Nationality Act, as

amended; or

(2) They have been separately registered for this purpose from

among those natives of Ireland who petitioned for consideration under

section 203(c) of the Immigration and Nationality Act, as amended, but

were not selected under the procedures established under Sec. 42.33.

Sec. 43.24 Order of consideration.

(a) Natives of Ireland. Consideration for issuance of a visa under

this subpart shall be given to natives of Ireland in order of diversity

rank number whose application for a visa under section 203(c) of the

Immigration and Nationality Act, as amended, has been refused under

section 212(a)(6)(C) or 212(e) of such Act, or both, or whose

application could not be processed to a conclusion because of the

applicable regional or foreign state limitation. Such consideration

shall thereafter be given to natives of Ireland separately registered

for this purpose as provided in Sec. 43.23(b)(2) and such consideration

shall be given in the rank order established by such registration.

(b) Natives of adversely affected countries other than Ireland.

Consideration for issuance of a visa under this subpart shall be given

to natives of adversely affected countries other than Ireland in order

of regional diversity rank number whose application for a visa under

section 203(c) of the Immigration and Nationality Act, as amended, has

been refused under section 212(a)(6)(C) or 212(e) of such Act, or both,

or whose application registered for consideration for issuance of a

visa under such section 203(c) could not be processed to a conclusion

because of the applicable regional or foreign state limitation.

Sec. 43.25. Numerical limitations.

(a) Centralized control. Centralized control of the numerical

limitations established pursuant to section 217 of Pub. L. 103-416 and

this subpart is established in the Department.

(b) Numerical limitation for natives of Ireland. The numerical

limitation for natives of Ireland shall be determined by multiplying by

0.40 the number of immigrant visas available under section 132 of Pub.

L. 101-649 during fiscal year 1994 to natives of adversely affected

countries which were not used by such natives and by adding to the

result of that calculation the number of visas available under such

section 132 during fiscal year 1994 to natives of Ireland which were

not used by such natives. [[Page 7446]]

(c) Numerical limitation for natives of adversely affected

countries other than Ireland.

(1) Overall. The overall numerical limitation for natives of

adversely affected countries other than Ireland shall be the difference

between the total number of visas available under section 132 of Pub.

L. 101-649 during fiscal year 1994 but not used during such fiscal year

and the number computed pursuant to paragraph (b) of this section.

(2) Regional apportionment. The overall numerical limitation

determined as provided in paragraph (c)(1) of this section shall be

apportioned among the regions established by section 203(c)(1)(F) of

the Immigration and Nationality Act, as amended, as follows--Africa:

0.54%; Asia: 11.51%; Europe: 85.93%; North America--none; Oceania:

None; and South America, Mexico, Central America, and the Caribbean;

2.02%.

(d) Allocation of immigrant visa numbers. Within the limitations

specified in paragraphs (b) and (c) of this section, the Department

shall allocate immigrant visa numbers for use in connection with the

issuance of immigrant visas and the granting of adjustment of status.

Sec. 43.26 Fees.

An applicant who is to be given consideration under this subpart

and who is notified or otherwise informed thereof shall remit to the

Department a fee of $25 in such manner as the Department shall specify

in the notification or other communication to the applicant. The fee

shall be $25 regardless of whether or not the applicant has a spouse

and/or child(ren) who intend to accompany or follow to join the

applicant. The remittance shall be negotiable in such form as the

Department shall specify.

Sec. 43.27 Eligibility to receive a visa.

The eligibility of an applicant for a visa under section 217 of

Pub. L 103-416 shall be determined as provided in the Immigration and

Nationality Act, as amended, and parts 40 and 42 of subchapter E-Visas

except that--

(a) Section 212(e) of the Immigration and Nationality Act, as

amended, shall not apply to such an applicant; and

(b) The provisions of Sec. 40.105 of this chapter shall apply to

such an applicant.

Dated: February 2, 1995.

Mary A. Ryan,

Assistant Secretary for Consular Affairs.

[FR Doc. 95-3004 Filed 2-7-95; 8:45 am]

BILLING CODE 4710-06-P