Visas: Documentation of Nonimmigrants Under the Immigration and Nationality Act, as Amended

DEPARTMENT OF STATE

22 CFR Part 41

[Public Notice 2403]

Visas: Documentation of Nonimmigrants Under the Immigration and

Nationality Act, as Amended

AGENCY: Bureau of Consular Affairs, Department of State.

ACTION: Interim final rule, with request for comments.

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SUMMARY: The Violent Crime Control and Law Enforcement Act of 1994

created a new nonimmigrant visa classification by adding section

101(a)(15)(S) to the Immigration and Nationality Act. These regulatory

amendments establish standards for the issuance of nonimmigrant visas

under this classification.

DATES: Effective January 24, 1996. Written comments are invited and

must be received on or before March 25, 1996.

ADDRESSES: Written comments may be submitted, in duplicate, to the

Chief, Legislation and Regulations Division, Visa Services, Department

of State, Washington, D.C. 20522-0113, (202) 663-1204.

SUPPLEMENTARY INFORMATION: The Violent Crime Control and Law

Enforcement Act of 1994, Public Law 103-322, was signed by the

President on September 13, 1994. Section 130003 of the Act amended the

Immigration and Nationality Act by adding section 101(a)(15)(S), a new

nonimmigrant visa classification. This visa classification provides for

the admission into the United States of certain alien witnesses and

informants.

The first of two paragraphs of the new section 101(a)(15)(S)

provides for the admission of aliens determined by the Attorney General

to possess critical reliable information concerning a criminal

organization or enterprise. The alien must be willing to provide that

information to federal and/or state authorities, and the Attorney

General must determine that his/her presence is essential to the

success of an authorized criminal investigation or prosecution.

Pursuant to a new section 214(j)(i) of the INA also added by section

13003, no more than 100 visas are available in this category per fiscal

year.

The second paragraph of 101(a)(15)(S) provides for nonimmigrant

visas for aliens whom the Secretary of State and the Attorney General

jointly determine possess critical reliable information about a

terrorist organization, enterprise or operation, and who are willing to

provide or have provided such information to federal law enforcement

authorities, or a federal court, and who will be or have been placed in

danger as the result of providing such information. They must also be

eligible for an award under section 36(a) of the State Department's

Basic Authorities Act of 1956. Pursuant to the new section 214(j)(i) of

the INA referred to above, no more than 25 visas are available in this

category per fiscal year.

The spouse, married and unmarried sons and daughters, and parents

of aliens classified under subsection (S)(i) or (S)(ii) may be granted

derivative status, if the Attorney General (or in the case of (S)(ii),

the Secretary of State and the Attorney General jointly) consider it

appropriate.

The enactment of this section provides a new mechanism to admit

aliens into the U.S. as witnesses and informants. Under past law the

only means to admit such aliens were either in the B visa category or

under parole.

This visa classification requires the Attorney General in the case

of the first subsection and the Attorney General and the Secretary of

State in the case of the second subsection to determine that all the

statutory requirements are met prior to visa issuance. The Immigration

and Naturalization Service (INS) has promulgated extensive regulations

[60 FR 44260] on this classification, explaining how the law

enforcement agencies interact with the Attorney General in order to

meet the applicable legal requirements.

Under subsection (ii) of the S classification, the Secretary of

State and the Attorney General act jointly in determining the alien's

entitlement to classification. The initial stages of processing under

(S)(ii) lie with the Department of State. When a potential (S)(ii)

alien is identified, it must be determined that the alien is eligible

to receive a reward under section 36(a) of the State Department Basic

Authorities Act of 1956. The responsibility of carrying out this reward

program under section 36(a) of that Act is delegated by the Secretary

of State to the Assistant Secretary of State for Diplomatic Security.

Section 226 of Volume 12 of the Foreign Affairs Manual sets forth the

procedures established to carry out the requirements of section 36(a),

processing of cases through the rewards committee. Determination of

eligibility for receipt of a reward under section 36(a) made by the

rewards committee is certified to the Assistant Secretary of State for

Consular Affairs, to whom the Secretary has delegated the

responsibility to implement the visa function under the Immigration and

Nationality Act, which would necessarily include the recently added

section 101(a)(15)(S). Acting on behalf of the Assistant Secretary for

Consular Affairs, the Visa Office will then certify to the Attorney

General the alien's eligibility for classification under subsection

(s)(ii).

When determinations of entitlement to visa status under either

section (S)(i) or (S)(ii) are completed, the INS, on behalf of the

Attorney General, certifies such to the Visa Office which then

communicates with the relevant consular post. The consular officer will

process the visa application pursuant to guidance and instruction

provided by the Visa Office. A visa may be authorized for the period

necessary pursuant to the Attorney General's certification, but for a

period not to exceed the three year statutory limit.

The implementation of the numerical limitation, as well as the

adjustment of

[[Page 1838]]

status procedures, is addressed in the INS regulations, as that agency

bears the responsibility for administering those provisions.

Interim Final Rule

Law enforcement agencies need access to the benefits provided in

this legislation and, while the Department can administer the S visa on

the basis of the INA, without regulations, use of the S visa by law

enforcement agencies will be facilitated by prompt formulation of these

regulatory provisions and the guidance, controls, and structure they

afford. Moreover, given the unique characteristics of the S visa, as a

classification available in the discretion of the Attorney General or

Secretary of State for law enforcement and counter-terrorism purposes

only, this regulation does not pertain to a visa classification that

will be available to the general public. Prior notice and public

comment with respect to this rule are therefore impracticable,

unnecessary and contrary to the public interest. Under these

conditions, there is good cause under 5 U.S.C 553 to make the rule

effective upon publication, with public comments to be considered

thereafter.

In accordance with 5 U.S.C. 605(b) [Regulatory Flexibility Act], it

is certified that this rule does not have a ``significant adverse

economic impact'' on a substantial number of small entities. This rule

is exempt from E.O. 12866, but has been coordinated with the

Immigration and Naturalization Service because joint action of the

Secretary of State and the Attorney General is required under INA

101(a)(15)(S), as amended. The rule imposes no reporting or

recordkeeping action 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 is certified to be in

compliance therewith.

List of Subjects in 22 CFR Part 41

Aliens, Nonimmigrants, Passports and Visas, Witnesses and

Informants.

Accordingly, title 22, part 41 of the Code of Federal Regulations,

is amended as follows:

PART 41--[AMENDED]

1. The authority citation for part 41 is revised to read as

follows:

Authority: 8 U.S.C. 1104.

2. Part 41, Subpart I is amended by revising the heading to read as

follows:

Subpart I--Fiance(e)s and Other Nonimmigrants

3. A new Sec. 41.82 is added to read as follows:

Sec. 41.82 Certain Parents and Children of Section 101(a)(27)(I)

Special Immigrants [Reserved]

4. A new Sec. 41.83 is added to read as follows:

Sec. 41.83 Certain Witnesses and Informants.

(a) General. An alien shall be classifiable under the provisions of

INA 101(a)(15)(S) if:

(1) The consular officer is satisfied that the alien qualifies

under the provisions of that section; and

(2)(i) The consular officer has received verification from the

Department of State, Visa Office, that:

(A) in the case of INA 101(a)(15)(S)(i) the INS has certified on

behalf of the Attorney General that the alien is accorded such

classification, or

(B) in the case of INA 101(a)(15)(S)(ii) the Assistant Secretary of

State for Consular Affairs on behalf of the Secretary of State and the

INS on behalf of the Attorney General have certified that the alien is

accorded such classification;

(ii) and the alien is granted an INA 212(d)(1) waiver of any INA

212(a) ground of ineligibility known at the time of verification.

(b) Certification of S visa status. The certification of status

under INA 101(a)(15)(S)(i) by the Attorney General or of status under

INA 101(a)(15)(S)(ii) by the Secretary of State and the Attorney

General acting jointly does not establish that the alien is eligible to

receive a nonimmigrant visa.

(c) Validity of Visa. The period of validity of a visa authorized

on the basis of paragraph (a) of this section shall not exceed the

period indicated in the certification required in paragraph (b) and

shall not in any case exceed the period of three years.

Dated: December 6, 1995.

Mary A. Ryan,

Assistant Secretary for Consular Affairs.

[FR Doc. 96-1013 Filed 1-23-96; 8:45 am]

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