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

DEPARTMENT OF STATE

22 CFR Part 42

[Public Notice 2319]

Visas: Documentation of Immigrants Under the Immigration and

Nationality Act as Amended

AGENCY: Bureau of Consular Affairs, Department of State.

ACTION: Final rule.

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SUMMARY: This final rule promulgates changes to the regulations

implementing the Diversity Immigrant Program provided for in INA

201(a)(3), 201(e), 203(c), and 204(a)(1)(G), as amended. After analysis

of the comments received, the Department has decided to make the

changes proposed in its Notice of Proposed Rule Making of November 13,

1995.

EFFECTIVE DATE: February 21, 1996.

FOR FURTHER INFORMATION CONTACT: Cornelius D. Scully III, Director,

Office of Legislation, Regulations, and Advisory Assistance, Bureau of

Consular Affairs, Department of State, (202) 663-1184.

SUPPLEMENTARY INFORMATION: Public Notice 2284 at 60 FR 56961 proposed

amendments to Sec. 42.33 of 22 CFR Part 42 which implements the

Diversity Immigrant Program established by INA 201(a)(3), 201(e),

203(c), 203(e)(2), and 204(a)(1)(G), as amended. Specifically, the

Department proposed to modify the petitioning procedure by requiring

that aliens petitioning for selection to compete sign their petition

and include, with the petition, a photograph of the kind required with

applications for nonimmigrant visas, on the reverse of which the alien

must have printed his or her name. In addition, the Department proposed

to include authority for the collection of a processing fee in case it

is decided that such a fee should be charged.

During the comment period, the Department received three comments.

One commenter agreed that it would not be unreasonable to impose a

processing fee to cover the cost of the selection process; the other

two did not comment on the fee issue.

All three commenters opposed the proposals to require signature of

the petition and submission of a photograph with the petition. All

three represent organizations which, presumably for a fee, assist

aliens in preparing and submitting their petitions for consideration

under the Diversity Immigrant Program. All three emphasized the

``hardships'' that these new requirements would impose upon aliens who

use their services. One of the three set forth a detailed step-by-step

description of the organization's handling of petitions for its

clients, pointing out how imposition of these new requirements would be

inconsistent with the procedures the organization has established, at

least with respect to the mail-in period for consideration during

Fiscal Year 1997.

Effectively, all three commenters are opposing these proposed new

requirements because, at least with respect to the forthcoming mail-in

period, they make it difficult for the organizations to conduct this

aspect of their business as they have done up until now. All three

assert that this will impose a hardship on their clients. The

Department does not believe, however, that implementation of this

change can be said to impose a hardship on such aliens. Notice of the

revised requirements is being disseminated world-wide as part of the

annual notice of the mail-in period. This dissemination is occurring

more than a month before the first day of the mail-in period and the

period itself will be a full thirty days.

The Department has long been aware that there are organizations,

both in the United States and elsewhere, that have assisted aliens to

compete in the various immigrant visa lotteries that have existed since

1987, including the current Diversity Immigrant Visa Program. The

Department neither encourages nor discourages such activities, but

merely acknowledges their existence. At the same time, the Department

does not believe that it is either necessary, or even appropriate, that

it should refrain from establishing such requirements and procedures as

it considers necessary to ensure the integrity of the process, simply

because their establishment may inconvenience some such organizations

and the arrangements they have made for assisting their clients. Also,

the Department believes that those aliens who are genuinely motivated

to compete for immigration under the Diversity Immigrant Program will

not find it impossible, or even unduly difficult, to have their

petitions reach the designated address by the expiration of the mail-in

period.

The Department also believes that whatever inconvenience may be

caused by these changes must be weighed against the abuses they are

designed to prevent. During the comment period, the Department received

yet another communication from an immigrant visa issuing office about

an apparent impostorship. The alien concerned had a name very common in

the country, equivalent to John Smith in the United States. Vital

records in the country are unreliable and incomplete. This alien

recently approached the consular office asserting that he was the

``John Smith'' who had been selected in the FY 95 mail-in period. The

office's records reflect that some months previously it had issued a

Diversity Immigrant visa to a ``John Smith'' with the same date and

place of birth as the alien now claiming to be the rightful winner. Had

these new requirements been in effect for the FY 95 mail-in period, the

consular officer would have been able to match the photograph with the

applicant and the signature on the petition with other samples of the

applicant's handwriting. As it is, there is no possible way to

ascertain which of the two ``John Smiths'' was, in fact, the one whose

application was selected during the FY 95 mail-in period. As a result,

the Department has concluded that it should make the changes as

proposed.

Two of the commenters opposed the photograph requirement on the

ground that some potential petitioners may find it difficult to obtain

a photograph meeting the specifications set forth in the proposed rule.

The Department finds it difficult to take this comment seriously, since

the requirement proposed is identical with the photograph requirement

for nonimmigrant visa applicants which has been in effect for decades.

Every

[[Page 1524]]

year more than 5 million nonimmigrant visa applicants in countries

throughout the world manage to comply with this requirement, and the

Department cannot believe that those wishing to compete for

consideration under the Diversity Immigrant Visa Program will have any

greater difficulty than the millions upon millions of nonimmigrant visa

applicants have had.

Finally, one of the commenters asked whether the petitioner was

required to sign the sheet of paper containing the information or

whether the information could appear on one sheet of paper and the

signature on another which would be stapled to it. The commenter urged

that the latter be allowed, because of processing problems which the

organization would otherwise have, and commented that it was not clear

from the proposed rule whether its suggested alternative was

legitimate. It was the Department's intent that the petition continue

to be a single sheet of paper, on which the petitioner is to type or

print legibly the information required and which the petitioner will

sign below the last line of information. The Department finds no basis

for complicating the process by having the information on one sheet of

paper and a signature on a separate blank sheet of paper stapled to it.

Moreover, the Department does not believe that either the Supplementary

Information in the proposed rule or the proposed text of 22 CFR

42.33(b)(1) can reasonably be read to mean anything other than that. In

any event, the Department hereby re-emphasizes that all petitions are

to consist of a single sheet of paper on which are inscribed both the

required information about the petitioner and the petitioner's

signature.

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 42

Aliens, Documentation, Immigrants, Passports and visas.

PART 42--[AMENDED]

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

Authority: 8 U.S.C. 1104.

2. Section 42.33 is amended by revising paragraph (b)(1) and by

adding paragraph (i) to read as follows:

Sec. 42.33 Diversity immigrants.

* * * * *

(b) Petition for consideration--(1) Form of petition. An alien

claiming to be entitled to compete for consideration under INA 203(c)

shall file a petition for such consideration. The petition shall

consist of a sheet of paper on which shall be typed or legibly printed

in the Roman alphabet the petitioner's name; date and place of birth

(including city and country, province or other political subdivision of

the country); the country of which the alien claims to be a native, if

other than the country of birth; name[s] and date[s] and place[s] of

birth of spouse and child[ren], if any; a current mailing address; and

location of consular office nearest to current residence or, if in the

United States, nearest to last foreign residence prior to entry into

the United States. The alien shall sign his or her signature on the

sheet of paper, using his or her usual signature. The alien shall also

affix to the sheet of paper a recent photograph of himself or herself.

The photograph shall be 1\1/2\ inches square (37mm x 37mm) and the

alien shall clearly print his or her name in the Roman alphabet on the

reverse of the photograph before affixing the photograph to the sheet

of paper.

* * * * *

(i) Processing fee. In addition to collecting the immigrant visa

application and, if applicable, issuance fees, as provided in

Sec. 42.71(b) of this part, the consular officer shall also collect

from each applicant for a visa under the Diversity Immigrant Visa

Program such processing fee as the Secretary of State shall prescribe.

Dated: January 16, 1996.

Mary A. Ryan,

Assistant Secretary for Consular Affairs.

[FR Doc. 96-730 Filed 1-19-96; 8:45 am]

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