Waiver of Certain Types of Visas

summary: This rule proposes to amend the Immigration and Naturalization

Service (the Service) regulations which permit district directors, in

individual cases, to waive nonimmigrant visa or passport requirements

under section 212(d)(4)(A) of the Immigration and Nationality Act (the

Act), if satisfied that a nonimmigrant alien is unable to present these

documents because of an unforeseen emergency. The rule will clarify

that carriers are liable for fines imposed under section 273(a) of the

Act for bringing nonimmigrants to the United States who do not have a

valid passport or nonimmigrant visa, or border crossing identification

card, even if a waiver of these documents is granted by the district

director at the time of admission into the United States. This change

is necessary to conform the language of the regulations with the

statutory requirement that a fine be imposed when a nonimmigrant is

transported to the United States without the proper documentation.

DATES: Written comments must be submitted on or before June 13, 1995.

addresses: Please submit written comments, in triplicate, to the

Director, Policy Directives and Instructions Branch, Immigration and

Naturalization Service, 425 I Street NW., Room 5307, Washington, DC

20536. Please include INS number 1669-94 on your correspondence to

ensure proper and timely handling.

for further information contact: Robert F. Hutnick, Assistant Chief

Inspector, Inspections Division, Immigration and Naturalization

Service, 425 I Street NW., room 7228, Washington, DC 20536, telephone

number (202) 616-7499.

supplementary information: Section 212(d)(4)(A) of the Act allows the

Attorney General to waive the requirement that a nonimmigrant alien be

in possession of a visa or passport if he or she is unable to present

the necessary documents due to an unforeseen emergency. Section 273(b)

of the Act imposes a fine upon a carrier for bringing aliens into the

United States without proper documentation. The wording of the current

regulation at Sec. 212.1(g) has the unintended effect of relieving the

carrier of fine liability if the district director granted a waiver of

the nonimmigrant visa or passport requirement. In Air BVI Ltd., Flight

BL 410, (BIA Unpublished Decision No. SAJ 10/50.670, August 26, 1992),

the Board of Immigration Appeals (the Board) characterized the current

regulation as creating a ``blanket'' waiver because of language in the

regulation stating that ``a visa * * * is not required.'' The Board

bases its decision on whether an alien's admission with a waiver

relieves the carrier of liability to find by interpreting the

regulations in effect at the time involved. Matter of Plane ``CUT-

604'', 7 I&N 701 (BIA 1958). If the regulation creates a blanket

waiver, by stating that no visa is required, no fine liability is

incurred by the carrier. By contrast, a regulation that provides an

``individual'' waiver, by requiring a visa and a passport to be

presented by a nonimmigrant, but providing for a waiver of this

requirement, will not relieve the carrier of fine liability.

The rule proposes to remove the language, ``A visa and a passport

are not required of a nonimmigrant * * *'' and clarifies that even when

the district director waives the documentary requirements in the

exercise of his or her discretion, on a case-by-case basis, and admits

such a nonimmigrant to the United States, such admission will not

eliminate the carrier's fine liability for bringing that alien to the

United States without proper documentation (Matter of Plane ``CUT-

604''). The fine procedures at 8 CFR part 280 remain applicable and

require no change.

This rule further proposes to amend Sec. 212.1(g) by removing the

provision regarding waivers of the visa requirement granted pursuant to

section 212(d)(4)(A) of the Act in the case of a national or resident

of Cuba. This action is being taken because this provision is obsolete.

Regulatory Flexibility Act

The Commissioner of the Immigration and Naturalization Service, in

accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has

reviewed this regulation and, by approving it, certifies that the rule

will not have significant economic impact on a substantial number of

small entities. This rule merely removes any ambiguity between the

current regulations and section 273 of the Act.

Executive Order 12866

This rule is not considered by the Department of Justice,

Immigration and Naturalization Service, to be a ``significant

regulatory action'' under Executive Order 12866, section 3(f),

Regulatory Planning and Review, and the Office of Management and Budget

has waived its review process under section 6(a)(3)(A).

Executive Order 12612

The regulation proposed herein will not have substantial direct

effects on the States, on the relationship between the National

Government and the States, or on the distribution of power and

responsibilities among the various levels of government. Therefore, in

accordance with Executive Order 12612, it is determined that this rule

does not have sufficient federalism implications to warrant the

preparation of a Federalism Assessment.

Executive Order 12606

the Commissioner of the Immigration and Naturalization Service

certifies that she has assessed this rule in light of the criteria in

Executive Order 12606 and has determined that this regulation will not

have an impact on family well-being.

Paperwork Reduction Act

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, Display of Control

Numbers. [[Page 19002]]

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 proposed to be 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, paragraph (g) is revised to read as follows:

Sec. 212.1 Documentary requirements for nonimmigrants.

* * * * *

(g) Unforeseen emergency. A nonimmigrant seeking admission to the

United States must present an unexpired visa, and passport valid for

the amount of time set forth in section 212(a)(7)(B) of the Act, or a

valid border crossing identification card at the time of application

for admission, unless the nonimmigrant satisfies the requirements

described in paragraphs (a) through (f) and (i) of this section. Upon a

nonimmigrant's application on Form I-193, a district director at a

Port-of-Entry may, in an exercise of his or her discretion, on a case-

by-case basis, waive the documentary requirements, if satisfied that

the nonimmigrant cannot present the required documents because of an

unforeseen emergency. The district director or the deputy Commissioner

may at any time revoke a waiver previously authorized pursuant to this

paragraph and notify the nonimmigrant in writing to that effect.

* * * * *

Dated March 15, 1995.

Doris Meissner,

Commissioner, Immigration and Naturalization Service.

[FR Doc. 95-9272 Filed 4-13-95; 8:45 am]

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