Visas: Regulations Pertaining to Both Nonimmigrants and Immigrants Under the Immigration and Nationality Act, as Amended

DEPARTMENT OF STATE

22 CFR Parts 40, 41, 42, 43, 44, 45, and 47

[Public Notice 2311]

Visas: Regulations Pertaining to Both Nonimmigrants and

Immigrants Under the Immigration and Nationality Act, as Amended

AGENCY: Bureau of Consular Affairs, DOS.

ACTION: Final rule.

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SUMMARY: On March 4, 1995, the President, as part of the

Administration's regulatory reinvention initiative, directed all heads

of departments and agencies, inter alia, to conduct a page-by-page

review of all regulations and to ``eliminate or revise those that are

outdated or otherwise in need of reform.'' (Memorandum for Heads of

Departments and Agencies, Regulatory Reinvention Initiative, March 4,

1995.) In response, the Visa Office of the Department of State has

undertaken a review of its visa regulations to determine whether they

may be eliminated, shortened, or rewritten in a more understandable

fashion. This final rule reflects the first publication of changes to

22 CFR, Chapter I being made as a result of this review.

EFFECTIVE DATE: January 24, 1996.

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

and Regulations Division, Visa Office, (202) 663-1204.

SUPPLEMENTARY INFORMATION: The President has directed each agency to

undertake a review of its regulations for the purpose of reducing the

regulations or, when possible, rendering them more readable and

comprehensible. The Visa Office of the Department of State has engaged

in a thorough line-by-line review of all visa related regulations in

parts 40 through 45 and part 47 of Title 22 of the Code of Federal

Regulations. As a result, the Visa Office is proposing various

amendments to the regulations consistent with the President's

directive. The Visa Office is also using this opportunity to make other

necessary changes to the regulations. The Visa Office will be

publishing the proposed changes in a series of separate publications.

Updating

Several regulations were originally crafted to address time-limited

circumstances under the law. With the passage of time or as the result

of the enactment of technical corrections, these provisions have become

moot. Consequently, pertinent amendments are made to the following

sections:

Part 40: Secs. 40.1(h), 40.1(m), 40.51(a) and (c) and 40.52.

Part 41: Secs. 41.11(a) and (b); 41.12; and 41.42(b)(1).

Part 42: Secs. 42.31(c); 42.52(a); 42.54; 42.55(a); and 42.74(b).

This rule also repeals Parts 43; 44 and 47.

S Visa

This rule assigns visa symbols to the visa classifications created

by the provisions of section 130003 of Pub. L. 103-322 which concerns

aliens who supply to the U.S. critical information relating to

terrorism and criminal organizations or enterprises. This rule revises

section 41.12 to reflect the existence of these new nonimmigrant

classifications and to provide the appropriate visa symbols.

Terminated Programs

The Immigration Reform and Control Act of 1986 (Pub. L. 99-603),

the Immigration Amendments Act of 1988 (Pub. L. 100-658), and the

Immigration Act of 1990 (Pub. L. 101-649) created several temporary

immigrant classifications. The following parts are being repealed by

this rule since these programs have terminated with the passage of

time: Part 43 which implemented the FY 1987-FY 1988 Nonpreference

Program under sec. 314 of Pub. L. 99-603 (commonly known as the NP-5

Program), and its successor, the FY 1992-1994 Diversity Transitional

Visa Program under sec. 132 of Pub. L. 101-649 (commonly known as the

AA-1 Program); Part 44 which implemented the FY 1990-1991 Immigrant

Program under sec. 3 of Pub. L. 100-658 (commonly known as the OP-1

program); and Part 47 which implemented the FY 1991-1993 Transitional

Program for Displaced Tibetans, sec. 134 of Pub. L. 101-649.

Transitional Visas for Legalized Aliens

Sec. 112 of the Immigration Act of 1990 (Pub. L. 101-649) provided

transitional immigrant visa numbers for legalized aliens in FY 1992-

1994. As this provision lapsed, the following sections are amended to

remove any reference to the transitional provisions: Secs. 42.31(c)

42.52(a), 42.54, 42.55(a) and 42.74(b).

Miscellaneous Provisions

Several other sections of 22 CFR have been amended to reflect

changes in the law. Sec. 40.1(h) is amended to accord immigrant visa

status under INA 203(b), the Diversity Program. It is also edited for

clarity. As the Immigration Act of 1990 (Pub. L. 101-649) imposed

different effective dates for various subtitles of the Act, both

Sec. 40.1(m) and Sec. 40.51(a) and (c) were written to conform with

those variances in effective dates. They are now edited to remove any

reference to such dates. Lastly, Sec. 41.41(b)(1) has been amended to

remove the reference to the obsolete Form I-551.

Typographical Corrections

Previous issues of the Federal Register contained typographical

errors which are being corrected in this rule. On page 21211 in the

issue of May 7, 1991, in the third column under paragraph (b) of the

regulation at Sec. 40.63(b), ``hereunder'' should have read

``thereunder.'' In the same publication on page 21212 in the second

column under paragraph (a)(5) of the regulation at Sec. 40.101,

``therefore'' should have read ``therefor.'' In the July 2, 1991 issue,

on page 30428 in the first column under Sec. 41.1, the reference to

``INA 212(a)(i)(I)'' in the introductory paragraph should have read

``INA 212(a)(7)(B)(i)(I), (i)(II),''and under Sec. 41.1(a) there should

have been a comma following the words ``permanent residence.'' Finally

in the first column of the July 17, 1991 issue, on page 32507 under

Sec. 45.5(e), the word ``position'' in the fourth line should have read

``petition.''

The 1995 edition of 22 CFR contains the following typographical

errors: in Sec. 41.3(d) the word ``consulat'' should be ``consular'';

in Sec. 42.63(a)(2) the word ``custory'' should read ``custody''; in

Sec. 42.72(e) the parentheses around the ``(Pub. L. 101-649)'' should

be removed; and in Sec. 42.82(g)(1) the ``e'' should be removed from

the word ``therefore''. On page 42611 in the November 5, 1987 issue in

the third column under Sec. 41.113, the citation ``INA 101(a)(3)''

should read ``INA 101(a)(30).'' This rule

[[Page 1835]]

also makes the corrections to these typographical errors.

Final Rule

Because this rule contains no substantive changes to 22 CFR, it has

been determined that notice and public comment are unnecessary. This

rule, therefore, meets the good cause exception under 5(b)(B) and is

being published as a final rule.

This rule is not considered to have a significant impact on a

substantial number of small entities under the criteria of the

Regulatory Flexibility Act. This rule imposes no reporting or record

keeping requirements on the public requiring the approval of the Office

of Management and Budget under the Paperwork Reduction Act.

This rule has been reviewed as required by E.O. 12778 and certified

to be in compliance therewith. It is exempt from E.O. 12866 but has

been reviewed and found to be consistent therewith.

List of Subjects in 22 CFR Parts 40, 41, 42, 43, 44, and 47

Aliens, Nonimmigrants, Immigrants, Visas and passports.

Final Regulations

In view of the foregoing, under the authority at 8 U.S.C. 1104,

title 22 of the Code of Federal Regulations subchapter E--parts 40, 41,

and 42 are amended to read as follows and, under the authority of

sections 132, 133, and 134 of Pub. L. 101-649, 104 Stats. 5000 and

5001, parts 43, 44, and 47 are removed and reserved.

PART 40--[AMENDED]

1. The authority citation for part 40 continues to read:

Authority: 8 U.S.C. 1104.

Sec. 40.9 [Removed and reserved]

2. Part 40 is amended by removing and reserving section 40.9 of

subpart A--General Provisions of subchapter E--VISAS.

3. In Sec. 40.1 paragraphs (h)(2) and (3), and (m) are revised and

paragraph (h)(4) is added to read as follows:

Sec. 40.1 Definitions.

* * * * *

(h) * * *

(2) Has satisfied the consular officer as to entitlement to special

immigrant status under INA 101(a)(27) (A) or (B);

(3) Has been selected by the annual selection system to apply under

INA 203(c); or

(4) Is an alien described in Sec. 40.51(c).

* * * * *

(m) Not subject to numerical limitation means that the alien is

entitled to immigrant status as an immediate relative within the

meaning of INA 201(b)(2)(i), or as a special immigrant within the

meaning of INA 101(a)(27) (A) and (B), unless specifically subject to a

limitation other than under INA 201(a), (b), or (c).

4. Section 40.51 is amended by revising paragraphs (a) and (c) to

read as follows:

Sec. 40.51 Labor certification.

(a) INA 212(a)(5) applicable only to certain immigrant aliens. INA

212(a)(5)(A) applies only to immigrant aliens described in INA

203(b)(2) or (3) who are seeking to enter the United States for the

purpose of engaging in gainful employment.

* * * * *

(c) Labor certification not required in certain cases. A spouse or

child accompanying or following to join an alien spouse or parent who

is a beneficiary of a petition approved pursuant to INA 203(b)(2) or

(3) is not considered to be within the purview of INA 212(a)(5).

5. Section 40.52 is revised to read as follows:

Sec. 40.52 Unqualified physicians.

INA 212(a)(5)(B) applies only to immigrant aliens described in INA

203(a) (2) or (3).

6. Section 40.63 is amended by revising paragraph (b) to read as

follows:

Sec. 40.63 Misrepresentation

* * * * *

(b) Misrepresentation in application under Displaced Persons Act or

Refugee Relief Act. Subject to the conditions stated in INA

212(a)(6)(c)(i), an alien who is found by the consular officer to have

made a willful misrepresentation within the meaning of section 10 of

the Displaced Persons Act of 1948, as amended, for the purpose of

gaining admission into the United States as an eligible displaced

person, or to have made a material misrepresentation within the meaning

of section 11(e) of the Refugee Relief Act of 1953, as amended, for the

purpose of gaining admission into the United States as an alien

eligible thereunder , shall be considered ineligible under the

provisions of INA 212(a)(6)(C).

* * * * *

7. Section 40.101 is amended by revising paragraph (a)(5) to read

as follows:

Sec. 40.101 Failure of application to comply with INA.

(a) Refusal under INA 221(g). The consular officer shall refuse an

alien's visa application under INA 221(g)(2) as failing to comply with

the provisions of INA or the implementing regulations if:

(1) * * *

(5) The necessary fee is not paid for the issuance of the visa or,

in the case of an immigrant visa, for the application therefor;

(6) * * *

PART 41--[AMENDED]

8. The authority citation for part 41 continues to read:

Authority: 8 U.S.C. 1104.

9. Section 41.1 is amended by revising the introductory text and

paragraph (a) to read as follows:

Sec. 41.1 Exemption by law or treaty from passport and visa

requirements.

Nonimmigrants in the following categories are exempt from the

passport and visa requirements of INA 212(a)(7)(B)(i)(I), (i)(II):

(a) Alien members of the U.S. Armed Forces. An alien member of the

U.S. Armed Forces in uniform or bearing proper military identification,

who has not been lawfully admitted for permanent residence, coming to

the United States under official orders or permit of such Armed Forces

(Sec. 284, 86 Stat. 232; 8 U.S.C. 1354).

* * * * *

10. Section 41.3 is amended by revising paragraph (d) to read as

follows:

Sec. 41.3 Waiver by joint action of consular and immigration officers

of passport and/or visa requirements.

* * * * *

(d) Emergent circumstances; visa waiver. An alien well and

favorably known at the consular office, who was previously issued a

nonimmigrant visa which has expired, and who is proceeding directly to

the United States under emergent circumstances which preclude the

timely issuance of a visa.

* * * * *

11. Section 41.11(a) and (b)(1) are revised to read as follows:

Sec. 41.11 Entitlement to nonimmigrant status.

(a) Presumption of immigrant status and burden of proof. An

applicant for a nonimmigrant visa, other than an alien applying for a

visa under INA 101(a)(15) (H)(i) or (L), shall be presumed to be an

immigrant until the consular officer is satisfied that the alien is

entitled to a nonimmigrant status described in INA 101(a)(15) or

otherwise established by law or treaty. The burden of proof is upon the

applicant to establish entitlement for nonimmigrant status and the type

of nonimmigrant visa for which application is made.

[[Page 1836]]

(b) Aliens unable to establish nonimmigrant status. (1) A

nonimmigrant visa shall not be issued to an alien who has failed to

overcome the presumption of immigrant status established by INA 214(b).

* * * * *

12. In section 41.12 the table removing the entries for ``S-1 and

S-2'' and adding new entries for ``S-7 and S-8'' to read as follows:

Sec. 41.12 Classification symbols.

* * * * *

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Symbol class Section of law

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* * * * *

S-7 Certain Aliens Supplying 101(a)(15)(S)(i).

Critical Information Relating to a

Criminal Organization or Enterprise.

S-8 Certain Aliens Supplying 101(a)(15)(S)(ii).

Critical Information Relating to

Terrorism.

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* * * * *

13. Section 41.42 is amended by revising paragraph (b)(1) to read

as follows:

Sec. 41.42 Crew-list visas.

* * * * *

(b) Application. (1) A list of all alien crewmen serving on a

vessel or aircraft proceeding to the United States and not in

possession of a valid individual D visa or INS Form I-151, Alien

Registration Receipt Card, shall be submitted in duplicate to a

consular officer on INS Form I-418, Passenger List--Crew List, or other

prescribed forms. The duplicate copy of Form I-418 must show in column

(4) the date, city, and country of birth of each person listed and in

column (5) the place of issuance and the issuing authority of the

passport held by that person. For aircraft crewmen, the manifest issued

by the International Civil Aviation Organization (ICAO) or Customs Form

7507, General Declaration, may be used in lieu of Form I-418 if there

is adequate space for the list of names.

* * * * *

14. Section 41.113 is amended by revising paragraph (k)(2)

introductory text to read as follows:

Sec. 41.113 Procedures in issuing visas.

* * * * *

(k) * * *

(2) Is the holder of an official identity card which has been

issued for participation in such Games under the Olympic Rules Bylaws,

which includes the signature of a competent authority of the

participating government and the assurance of that government's

recognition of the card for re-entry by the bearer for an additional

period of six months beyond the expiration date of the card, and which

otherwise meets the requirements of sections 101(a)(30) and

212(a)(7)(B)(i)(I) of the Immigration and Nationality Act, a stamp

consisting of:

* * * * *

PART 42--[AMENDED]

15. The authority citation for Part 42 continues to read:

Authority: 8 U.S.C. 1104.

Sec. 42.31 Family-sponsored immigrants.

16. Section 42.31 is amended by removing paragraph (c).

17. Section 42.52 is amended by revising paragraph (a) to read as

follows:

Sec. 42.52 Post records of visa applications.

(a) Waiting list. Records of individual visa applicants entitled to

an immigrant classification and their priority dates shall be

maintained at posts at which immigrant visas are issued. These records

shall indicate the chronological and preferential order in which

consideration may be given to immigrant visa applications within the

several immigrant classifications subject to the numerical limitations

specified in INA 201, 202, and 203. Similar records shall be kept for

the classes specified in INA 201(b)(2) and 101(a)(27) (A) and (B) which

are not subject to numerical limitations. The records which pertain to

applicants subject to numerical limitations constitute ``waiting

lists'' within the meaning of INA 203(e)(3) as redesignated by the

Immigration Act of 1990.

* * * * *

Sec. 42.54 Order of consideration.

18. Section 42.54 is amended by removing paragraph (b).

19. Section 42.55 is amended by revising paragraph (a) to read as

follows:

Sec. 42.55 Reports on numbers and priority dates of applications on

record.

(a) Consular officers shall report periodically, as the Department

may direct, the number and priority dates of all applicants subject to

the numerical limitations prescribed in INA 201, 202, and 203 whose

immigrant visa applications have been recorded in accordance with

Sec. 42.52(c)

* * * * *

20. Section 42.63 is amended by revising paragraph (a)(2) to read

as follows:

Sec. 42.63 Application forms and other documentation.

(a) * * *

(2) Application of alien under 14 or physically incapable. The

application on Form OF-230 for an alien under 14 years of age or one

physically incapable of completing an application may be executed by

the alien's parent or guardian, or, if the alien has no parent or

guardian, by any person having legal custody of, or a legitimate

interest in, the alien.

* * * * *

21. Section 42.72 is amended by revising paragraph (e) introductory

text to read as follows:

Sec. 42.72 Validity of visas.

* * * * *

(e) Aliens entitled to the benefits of section 154(a) and (b) of

Pub. L. 101-649.

* * * * *

22. Section 42.74 is amended by revising paragraph (b) to read as

follows:

Sec. 42.74 Issuance of new or replacement visas.

* * * * *

(b) Replacement immigrant visa for an alien subject to numerical

limitation. An immigrant documented under INA 203(a), (b), or (c) or

under section 124 of the Immigration Act of 1990, who was or will be

unable to use the visa during the period of its validity because of

reasons beyond the alien's control and for which the alien is not

responsible, may be issued a replacement immigrant visa under the

original number during the same fiscal year in which the original visa

was issued (provided the number has not been returned to the

Department), if the consular officer then finds the alien qualified.

The alien must pay anew the statutory application and issuance fees.

Prior to issuing a replacement immigrant visa at a consular office

other than the one that issued the original visa, the consular officer

must also ascertain whether the original issuing office knows of any

reason why a replacement visa should not be issued. In issuing a visa

under this paragraph, the consular officer shall insert the word

``REPLACE'' on Form OF-155A, Immigrant Visa and Alien Registration,

before the word ``IMMIGRANT'' in the title of the visa.

* * * * *

23. Part 43, 44 and 47 are removed and reserved.

[[Page 1837]]

PART 43--[REMOVED AND RESERVED]

PART 44--[REMOVED AND RESERVED]

PART 47--[REMOVED AND RESERVED]

PART 45--[AMENDED]

24. The authority citation for part 45 continues to read as

follows:

Authority: 8 U.S.C. 1104; 8 U.S.C. 1153.

25. Section 45.5 is amended by revising paragraph (e) to read as

follows:

PART 45 VISAS: DOCUMENTATION OF IMMIGRANTS UNDER SECTION 124 OF

PUBLIC LAW 101-649.

Sec. 45.5 Redetermination of admissibility if visa validity extended.

* * * * *

(e) For the purposes of this section, ``qualifying position'' shall

include both the position occupied by the alien at the time the

petition in the alien's behalf was approved and any other position

within the petitioning entity's organization, regardless of

geographical location, which would otherwise meet the requirements for

approval of such a petition in the alien's behalf. For the purposes of

this section, qualifying employment shall mean any position in the

United States of the kind required for approval of such a petition.

Dated: December 15, 1995.

Mary A. Ryan,

Assistant Secretary for Consular Affairs.

[FR Doc. 96-1012 Filed 1-23-96; 8:45 am]

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