Waiver of Certain Types of Visas

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 212

[INS No. 1669-94]

RIN 1115-AD77

Waiver of Certain Types of Visas

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Final rule.

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SUMMARY: This rule amends the Immigration and Naturalization Service

(the Service) regulations to 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 clarifies that

carriers are liable for fines imposed under section 273 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 was

necessary to conform the language of the regulations with the statutory

provision that imposes fine liability on a carrier which transports an

alien to the United States without the proper documentation.

EFFECTIVE DATE: March 22, 1996.

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 violations of section

273(a) of the Act. Section 273(a) of the Act requires carriers bringing

aliens into the United States to ensure that its passengers are in

possession of a valid passport and unexpired visa, if a visa is

required under the Act or regulations

The regulations at 8 CFR 212.1(g) had the unintended effect of

relieving the carrier of fine liability if the district director

granted a waiver of the passport or nonimmigrant visa 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Air BVI Ltd., Flight BL 410 (BIA Unpublished Decision No. SAJ 10/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 regulation as creating a ``blanket'' waiver because

of language in the regulation stated that ``a visa * * * is not

required.'' The Board based its decision on whether an alien's

admission with a waiver relieved the carrier of liability for a fine by

interpreting the regulations in effect at the time involved. Matter of

Plane ``CUT-604'', 7 I&N 701 (BIA 1958). If the regulations 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 for

a discretionary waiver of the visa and passport requirements to be

granted to a nonimmigrant on a case-by-case basis will not relieve the

carrier of fine liability.

This rule removes the language, ``[a] visa and a passport are not

required of a nonimmigrant'' so 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 280 remain applicable and require no change.

This rule further amends 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.

On April 14, 1995, at 60 FR 19001-19002, the Immigration and

Naturalization Service (the Service) published a proposed rule with

request for comments in the Federal Register, in order to correct this

loophole in the regulations which allowed carriers to transport

improperly documented aliens to the United States without incurring

fines under section 273 of the Act. Interested persons were invited to

submit written comments on or before June 13, 1995. The following is a

discussion of those comments received by the Service and the Service's

response.

Discussion of Comments on the Proposed Rule

The Service received four comments on the proposed rule. One

commenter claimed the proposed change ``will have an effect repugnant

to the intent of Congress, the existing regulation of the Attorney

General and the intended effect of the current regulation.'' It must be

emphasized that the Service policy of strictly enforcing the fine

provisions of section 273 of the Act in appropriate cases is a

continuation of a more than 70-year-old policy of carrying out

Congress' intent to hold carriers responsible for passengers they have

transported to the United States. The Board and the courts have

consistently held that carriers must exercise reasonable diligence in

boarding their passengers for transport to the United States and are

subject to administrative fines for failure to do so, e.g., Matter of

[[Page 11718]]

Eastern Airlines, Inc., Flight #798, Int. Dec. 3110 (BIA 1989); Matter

of M/V Guadalupe, 13 I&N Dec. 67 (BIA 1968); New York & Porto Rico S.S.

Co. v. United States, 66 F.2d 523, 525 (2d Cir. 1933).

The imposition of administrative fines in appropriate cases has

long been an important tool in enforcing our immigration laws and

safeguarding our borders. In enacting both section 273 of the Act of

1952 as well as section 16 of the Immigration Act of 1924, the

precursor of section 273, Congress intended to make the carrier ensure

compliance with the requirements of the respective statutory

provisions. See Joint Hearings on the Revision of Immigration,

Naturalization, and Nationality Laws, Senate and House Subcommittees on

the Judiciary, Testimony of Stuart G. Tipton, General Counsel, Air

Transport Association of America at p. 294 (March 14, 1951); Matter of

M/V ``Runaway'', 18 I&N Dec. at 128 (citing section 273 cases). Indeed,

in enacting section 273 of the Act, Congress strengthened the previous

penalty provisions, which only applied to carriers unlawfully

transporting immigrants to this country, to apply to the unlawful

transport of nonimmigrants as well. See Matter of S.S. Greystoke Castle

and M/V Western Queen, 6 I&N Dec. 112, 114-15 (BIA, AG 1954); Legal

Opinion of the INS General Counsel, 56336/273a at 6 (Sept. 3, 1953).

The commenter further claims that ``Congress clearly contemplated

situations whereby nonimmigrant aliens would need to travel to the

United States without the formality of obtaining a passport or visa by

enacting INA 212(d)(4)(A).'' Congress indeed contemplated a situation

where this would arise. Nevertheless, the commenter failed to mention

that a passport or visa may be waived only by ``the Attorney General

and the Secretary of State acting jointly.'' Congress at no time

envisioned that carrier representatives would be responsible for

determining admissibility of aliens to the United States at the port of

embarkation for any reason without prior authority from the Attorney

General or Secretary of State.

One commenter wrote that ``the motivation for the proposed rule is

to circumvent the holding in Matter of ``Flight SR-4'', 10 I&N Dec. 197

(BIA 1963) and Air BVI, LTD., Flight BL 410, SAJ 10/50.670, Decided by

the Board August 26, 1992.'' The Service is not trying to circumvent

these decisions; rather it is clarifying the regulation by amending it

to conform to Congressional intent.

Regarding fines even though an alien was subsequently admitted, a

5th Circuit Court stated, in part:

And intrinsically, [the] 1952 Act which included for the first

time nonimmigrant aliens contains terms indicating quite

persuasively that Congress carefully distinguished between penalties

against the carrier and the ultimate admission of the aliens. The

Peninsular & Occidental Steamship Company versus The United States,

242 F. 2d 639 (5 Cir. 1957). See also the conclusions of the BIA in

such cases as Matter of SS Florida, 5 I&N Dec. 85 (BIA 1954) and

Matter of Plane ``F-BHSO'', 9 I&N Dec. 595 (BIA 1962).

The amending of the regulation also parallels the granting of a

visa waiver to a lawful permanent resident. In 8 CFR 211.1(b)(3) it

reads, in part:

Waiver of visas. An immigrant alien returning to an

unrelinquished lawful permanent residence in the United States after

a temporary absence abroad who satisfies the district director in

charge of the port of entry that there is good cause for his failure

to present an immigrant visa, Form I-151 or I-551, or reentry permit

may, upon application on Form I-193, be granted a waiver of that

requirement.

The regulation at 8 CFR 212.1(g) is being amended to read, in part:

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 clarification at 8 CFR 212.1(g) will give the Service the

ability to exercise discretion to admit improperly documented

nonimmigrants while penalizing carriers for the bringing of these

aliens to the United States in violation of section 273 of the Act.

This is similar to the granting of individual waivers to lawful

permanent residents under 8 CFR 211.1(b)(3), which does not relieve the

carrier of liability under section 273 of the Act. This has been the

intent of Congress since the enactment of the Immigration Act of 1924

which established section 16, the precursor to section 273 of the

Immigration Act of 1952. This will clarify any ambiguity in the

regulation regarding carriers' liability to ensure the transportation

of properly documented aliens to the United States and the imposition

of penalties for failure to do so.

One commenter claimed that the regulatory change violates the

Regulatory Flexibility Act (5 U.S.C. 605(b)) because the rule will have

a significant impact on a substantial number of small entities. The

Service disagrees. The number of aliens entering the United States

without documentation for unforeseen emergent reasons is sufficiently

low that there is no likely harm to any small carrier. According to the

Department of State, very few aliens apply for emergency visa waivers.

Furthermore, fines are not imposed on carriers that have properly

screened their passengers for proper documentation required to enter

the United States. These penalties are imposed only for those cases

where the carrier has failed to properly screen its passengers and

permitted improperly documented aliens to board its aircraft or vessel.

No carrier, whether small or large, need suffer any penalties under

section 273 of the Act if it properly screens its passengers. To this

end, the Service has and will continue to conduct training for carriers

upon request to improve a carrier's screening procedures and thereby

reducing its fines under section 273 of the Act.

In addition, carriers are having their fines burden reduced as a

direct result of the passage of the Immigration and Nationality

Technical Corrections Act of 1994, Public Law 103-416, which was signed

by the President on October 25, 1994. Section 209(a)(6) Pub. L. 103-416

contained a technical amendment which added section 273(e) to the Act.

The addition of section 273(e) to the Act permits the Service to

reduce, refund, or waive fines under section 273 of the Act pursuant to

such regulations as the Attorney General shall prescribe in cases in

which: (1) The carrier demonstrates that it had screened all passengers

on the vessel or aircraft in accordance with procedures prescribed by

the Attorney General, or (2) circumstances exist that the Attorney

General determines would justify such reduction, refund, or waiver. The

new legislation, corresponding regulations, and a Memorandum of

Understanding (MOU) to be signed with individual carriers, will enable

the Service to reduce, refund, or waive a fine imposed under section

273 of the Act for a carrier that demonstrates successful screening

procedures by achieving satisfactory performance in the transportation

of properly documented aliens to the United States. The Service will

reward those carriers that follow the terms of the legislation or MOU

and continue to impose financial penalties on carriers that fail to

properly screen passengers. Increased carrier training and increased

carrier cooperation with the Service are also expected to contribute to

a reduction in the arrival of improperly documented aliens to the

United States. Regulations regarding fines mitigation will be published

as a proposed rule,

[[Page 11719]]

with comment period, in the Federal Register.

The commenter also claims that the proposed rule constitutes a

``significant regulatory action.'' The Service does not agree. This

rule clarifies Sec. 212.1(g) to conform to Congressional intent on the

boarding of improperly documented aliens. In spite of the Board's

holdings to the effect that the old regulation did not allow the

Service to fine a carrier for bringing nonimmigrants to the United

States without the required documents when a visa waiver is

subsequently granted at the port of entry, the Board has never held

that the carrier was not liable for fines in these circumstances under

section 273 of the Act. Consequently, this rule simply amends the

language to conform to Congressional intent, as recognized by the

Board.

The commenter correctly states that ``the legitimate goal of the

Service is to protect the borders of the United States but only to the

extent authorized by Congress and the Attorney General.'' He

incorrectly states ``no national security concern * * * would be served

by the proposed change.'' The Service disagrees with this assertion.

The Service is charged with continually encouraging carriers to

properly screen their passengers prior to embarkation for the United

States. Proper screening by trained carrier personnel overseas can and

should prevent the arrival to the United States of aliens not in

possession of proper documentation. Travel to the United States should

be accomplished through the orderly procedures presently in place to

ensure a legal flow of immigrants and nonimmigrants. Furthermore, a

carrier cannot rely on the passenger's urgent need to travel on short

notice, since considerations of personal expediency do not constitute

due diligence contemplated by the statute (Matter of Aircraft ``VT

DJK'', 12 I. & N. Dec. 267 (BIA 1967).

One commenter claimed it ``defied logic [in cases where] * * * the

[d]istrict [d]irector was satisfied that the alien was unable to

present the required documents and, therefore, found good cause to

grant a waiver'' that the Service should fine the carrier. The reason

that most waivers are given in the first place is not so much that the

district director was satisfied that the alien was unable to present

the required documents, but rather that the Service showed compassion

to the alien for the mistake of the carrier in boarding the alien and,

further, determined that returning the alien to his or her port of

embarkation would impose a significant hardship on the alien. This rule

will permit the Service to continue to grant visa waivers in cases

involving aliens not in possession of proper documentation to enter the

United States, when otherwise admissible, but properly fine the carrier

for allowing the alien to arrive in the United States in the first

place.

One commenter claims that this rule will have an adverse effect on

family well-being. Another commenter stated ``the proposed rule will

adversely affect the travelling public and reflect negatively upon the

Service and air carriers. * * *'' The Service disagrees. The Department

of State and the Service already have in place the proper procedures

which aliens, in emergent circumstances, may utilize to obtain

authorization for travel to the United States without a visa or

passport. The Service does not perceive that family well-being will be

affected whatsoever by this rule. Aliens who are not properly

documented for travel to the United States must obtain permission from

the Department of State and the Service before boarding a carrier.

Accordingly, a carrier should not, under any circumstances, board an

improperly documented alien without prior authorization from the

Department of State and the Service.

The commenter further claims that the carrier should not be

``penalized for showing the same compassion by transporting the

passenger that the Service evidences by issuing a waiver.'' Again the

service disagrees. The decision to admit an alien without proper

documentation is clearly vested in the Attorney General and the

Secretary of State and not in the carrier.

One commenter is concerned about the Service's policy of proceeding

with fines against carriers in certain cases involving improperly

documented aliens arriving because ``emergency medical treatment, for

funerals, for visiting critically injured or dying relatives, and other

`unforeseen emergencies.' '' The commenter further claims that ``a

carrier must have some latitude to determine that the passenger is

travelling due to a valid emergency, such as a death in the family, a

medical emergency, or the loss of all documents due to robbery, etc.''

The Service again disagrees. The statute vests discretionary authority

in the Service and not in the carrier. Furthermore, as stated

previously, procedures presently exist for aliens to obtain emergency

waivers of both passport and visa from the Department of State with

concurrence from the Service. According to section 212(d)(4) of the

Act, as amended by the Immigration Act of 1990 (Pub. L. 101-649, dated

November 29, 1990, 104 Stat. 5076), ``[e]ither or both of the

requirements of paragraph (7)(B)(i) of subsection (a) may be waived by

the Attorney General and the Secretary of State acting jointly (A) on

the basis of unforeseen emergency in individual cases. * * *''

Furthermore, Sec. 41.3 of 22 CFR states:

Under the authority of INA 212(d)(4), the documentary requirements

of INA 212(a)(7)(B)(i)(I), (i)(II) may be waived for any alien in whose

case the consular officer serving the port or place of embarkation is

satisfied after consultation with, and concurrence by, the appropriate

immigration officer, that the case falls within any of the following

categories:

* * *

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

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

nonimmigration visa which has expired, and who is proceeding directly

to the United States under emergent circumstances which preclude the

timely issuance of a visa.

The procedures for aliens seeking a passport or visa waiver for

emergent reasons are also described in Title 9 of the Foreign Affairs

Manual (FAM) part 41, section 3, in part, as follows:

Waivers by Joint Action of Consular and Immigration Officers of

Passport and/or Visa Requirements

Under the authority of INA 212(d)(4), the documentary requirements

of INA 212(a)(7)(B)(i)(I), (i)(II), may be waived for any alien in

whose case the consular officer serving the port or place of

embarkation is satisfied after consultation with, and concurrence by,

the appropriate immigration officer, that the case falls within any of

the following categories:

(a) Residents of Foreign Contiguous Territory; Visa and Passport Waiver

* * *;

(b) Aliens for Whom Passport Extension Facilities Are Unavailable;

Passport Waiver

* * *;

(c) Aliens Precluded From Obtaining Passport Extensions by Foreign

Government Restrictions; Passport Waiver

* * *;

(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.

[[Page 11720]]

(e) Members of Armed Forces of Foreign Countries; Visa and Passport

Waiver

* * *;

(f) Landed Immigrants in Canada; Passport Waiver

* * *;

(g) Authorization to Individual Consular Office; Visa and/or Passport

Waiver

An alien within the district of a consular office which has been

authorized by the Department, because of unusual circumstances

prevailing in that district, to join with immigration officers abroad

in waivers of documentary requirements in specific categories of cases,

and whose case falls within one of those categories.

Notes

N1 Transporting Undocumented Aliens to United States

Posts must inform carriers inquiring about transporting an

undocumented alien that they would be subject to a fine unless such

alien is within one of the categories listed in 22 CFR 41.2 or 41.3.

N2 Areas of Responsibility of Immigration Officers

Consular officers shall address requests for concurrence in waivers

of passport and visa requirements to the immigration officer in charge,

in care of the appropriate post as indicated in 9 FAM Part IV.

N3 Furnishing Information Concerning Waivers to Immigration Officers

* * *

(7) A brief summary of the emergent circumstances surrounding the

case which must include information indicating that all of the

requirements of the subparagraph of 22 CFR 41.3 under which the waiver

is recommended have been met; and

* * *

N4 Issuing Documents to Waiver Beneficiaries

* * *.

Aliens in emergent circumstances can and should obtain a visa or a

waiver of visa, if required, prior to boarding. These procedures are in

place to ensure that aliens are not allowed to arrive in the United

States without first being properly screened, unless waived by statute.

The Service respectfully declines the invitation of one commenter

to ``develop an agreed set of criteria to define an unforeseen

emergency.'' There already exist procedures an alien must follow to

apply for entry into the United States under emergent circumstances as

previously explained. The Service expects aliens to follow these

emergency procedures to obtain the proper documentation to enter the

United States if they lack the necessary documentation. In instances of

emergent circumstances and travel requests occurring after the normal

consulate business hours, consular officers are available for visa or

passport waiver authorization on a case-by-case basis. To allow

carriers the authority to determine admissibility of aliens not in

possession of proper documentation at the port of embarkation would

seriously undermine the enforcement of the Act and the security of the

United States, and would circumvent existing immigration laws and

regulations. As the carrier organizations admit, only immigration

officers can determine the admissibility of an alien to the United

States. The Service is not in a position to abdicate its authority or

responsibility to safeguard the borders of the United States as

Congress has mandated.

One commenter stated that the Service should never consider

granting a visa waiver under emergent circumstances. The commenter

states that ``under no circumstances or unforeseen emergencies * * *

should [a government body] be authorized to grant entry into the United

States [to any alien] without valid documentation.'' Furthermore, the

same commenter concluded, ``in the event that someone attempts to enter

into the United States without proper credentials, they should be fined

and deported to the place of original entry. * * *'' The statute

authorizes a waiver of the documentary requirements in appropriate

circumstances. In the case of a nonimmigrant who is otherwise

admissible, a favorable exercise of that discretion is often

appropriate to avoid unnecessary hardship.

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.

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.

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 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, 1187, 1225,

1226, 1227, 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 a 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 one or more of the paragraphs (a) through (f) or (i) of

this section. Upon a nonimmigrant's application on Form I-193, a

district director at a port of entry may, in the exercise of his or her

discretion, on a case-by-case basis, waive the

[[Page 11721]]

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: December 11, 1995.

Doris Meissner,

Commissioner, Immigration and Naturalization Service.

[FR Doc. 96-7039 Filed 3-21-96; 8:45 am]

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