Visas: Issuance of New or Replacement Immigrant Visas

DEPARTMENT OF STATE

Bureau of Consular Affairs

22 CFR Part 42

[Public Notice 2664]

Visas: Issuance of New or Replacement Immigrant Visas

AGENCY: Bureau of Consular Affairs, DOS.

ACTION: Final rule.

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SUMMARY: This rule amends the Department's regulations to comply with a

change in the Immigration and Nationality Act (INA) that requires the

Department to factor the number of immigrant visas issued to immediate

relatives into the annual worldwide limitation on immigration.

EFFECTIVE DATE: January 29, 1998.

FOR FURTHER INFORMATION CONTACT: Pam Chavez, Legislation and

Regulations Division, Visa Services, Department of State, Room L6-21,

SA-1, Washington, DC 20520-0106. Phone: (202) 663-1203.

SUPPLEMENTARY INFORMATION: On November 29, 1990, the President signed

the Immigration Act of 1990 (IMMACT 90) which, among other things,

amended by including the number of aliens granted immediate relative

status into the calculation for determining the annual family

preference limitation. Before IMMACT 90 (Pub. L. 101-649) the number of

immediate relative visas issued to the spouses, minor children and

parents of U.S. citizens was not a factor in determining the overall

annual numerical limitation for worldwide immigration.

IMMACT 90 amended the INA by requiring the Department to deduct the

number of immediate relatives granted permanent resident status in the

United States during the previous fiscal year from the worldwide

480,000 annual limit for the current fiscal year, but limited the

annual family preference limit to no less than 226,000. To avoid

double-counting the number of visas issued to immediate relatives who,

for reasons beyond their control, are unable to use their original

immigrant visas, consular offices will now issue replacement visas

rather than new visas. The Department is amending its regulations at 22

CFR 42.74 accordingly.

Final Rule

The Department has determined that there is good cause for this

rule to be exempt from notice comment requirements under 5 U.S.C.

553(b)(3)(A) because Public Law 101-649 requires that the number of

aliens granted immediate relative status be included in the calculation

of the annual family preference limitation and the use of replacement

visas rather than new visas is simply an administrative mechanism to

avoid double counting. Notice and public comment thereon are therefore

unnecessary.

Regulatory Flexibility Act

The Regulatory Flexibility Act of 1980, as amended in 1996 (5

U.S.C. Chapter 6), requires the Federal Government to anticipate and

minimize the impact of rules and paperwork requirements on small

entities. Such entities are defined as small businesses (those with

fewer than 500 employees), small non-profit organizations (those with

fewer that 500 employees), and small governmental entities (those in

areas with fewer than 50,000 residents). The Department has assessed

the potential impact of the Rule and the Assistant Secretary for

Consular Affairs by approving it certifies that it will not have a

significant economic effect on a substantial number of small entities.

It imposes no requirements on such entities.

In addition, pursuant to the Small Business Regulatory Fairness Act

(5 U.S.C. Chapter 8), the Department has screened the Rule and

determined that it is not a ``major rule'', as defined in 5 U.S.C.

804(2). It will not result in an annual effect on the economy of

$100,000 or more; a major increase in cost or prices; or significant

adverse effects on competition, employment, investment, productivity,

innovation, or on the ability of U.S.-based companies in domestic and

export markets.

Paperwork Reduction Act

No new information requirements are contained in this final rule.

Executive Orders 12866 and 12988

This rule is exempt from Executive Order 12866 but has been

reviewed internally by the Department to ensure consistency with the

objectives thereof. This rule also has been reviewed as required by

Executive Order 12988 and determined to be in compliance therewith.

Executive Order 12612

This rule will not have substantial direct effect on the States, on

the relationship between the national government and the States, or on

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.

Unfunded Mandates Reform Act of 1995

This rule will not result in the expenditure by state, local and

tribal governments, in the aggregate, or by the private sector, of

$100,000,000 or more in any one year, and it will not significantly or

uniquely affect small governments. Therefore, no actions were deemed

necessary under the provisions of the Unfunded Mandates Reform Act of

1995 (2 U.S.C. 1501 et seq.) and Executive Order 12875.

List of Subjects in 22 CFR Part 42

Aliens, Immigrants, Visas and passports.

In view of the foregoing 22 CFR is amended as follows:

PART 42--[AMENDED]

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

Authority: 8 U.S.C. 1104.

2. 22 CFR 42.74 is amended by revising paragraph (a) and (b) to

read as follows:

Sec. 42.74 Issuance of new or replacement visas.

(a) New immigrant visa for a special immigrant under INA

101(a)(27)(A) and (B).

(1) The consular officer may issue a new immigrant visa to a

qualified alien entitled to status under INA 101(a)(27)(A) or (B), who

establishes:

(i) That the original visa has been lost, mutilated or has expired,

or

(ii) The alien will be unable to use it during the period of its

validity;

[[Page 4394]]

(2) Provided:

(i) The alien pays anew the statutory application and issuance

fees; and

(ii) The consular officer ascertains whether the original issuing

office knows of any reason why a new visa should not be issued.

(b) Replacement immigrant visa for an immediate relative or for an

alien subject to numerical limitation.

(1) A consular officer may issue a replacement visa under the

original number of a qualified alien entitled to status under INA

201(b)(2)(A)(i), INA 203(a), (b), or (c), or under INA 124, if--

(i) The alien is unable to use the visa during the period of its

validity due to reasons beyond the alien's control;

(ii) The visa is issued during the same fiscal year in which the

original visa was issued;

(iii) The number has not be returned to the Department as a

``recaptured visa number'';

(iv) The alien pays anew the statutory application and issuance

fees; and

(v) The consular officer ascertain whether the original issuing

office of knows of any reason why a new visa should not be issued.

(2) In issuing a visa under this paragraph (b), 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.

* * * * *

Dated: December 17, 1997.

Mary A. Ryan,

Assistant Secretary for Consular Affairs.

[FR Doc. 98-1780 Filed 1-28-98; 8:45 am]

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