Bureau of Consular Affairs; Documentation of Nonimmigrants Under the Immigration and Nationality Act, as AmendedFiling an Application

DEPARTMENT OF STATE

22 CFR Part 41

[Public Notice 2763]

Bureau of Consular Affairs; Documentation of Nonimmigrants Under

the Immigration and Nationality Act, as Amended--Filing an Application

AGENCY: Bureau of Consular Affairs, DOS.

ACTION: Proposed rule.

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SUMMARY: Consular offices abroad have been experiencing an ever-

increasing volume of nonimmigrant visa (NIV) applications. Some have

had to begin declining to accept new applications from persons denied

as intending immigrants in the recent past. This proposed rule would

put this practice on a regulatory footing by formalizing a non-

acceptance-for-six-months policy with respect to a new application from

an alien whose prior NIV application has been refused under the

provisions of INA 214(b).

DATES: Written comments must be received on or before May 18, 1998.

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

Chief, Legislation and Regulations Division, Visa Services, Department

of State, Washington, D.C. 20520-0106.

FOR FURTHER INFORMATION CONTACT: H. Edward Odom, Chief, Legislation and

Regulations Division, Visa Services, CA/VO/L/R, Department of State,

Washington, D.C. 20520-0106, (202) 663-1204.

SUPPLEMENTARY INFORMATION: Section 214(b) of the Immigration and

Nationality Act (INA) establishes a presumption that an alien is an

intending immigrant unless he or she can establish entitlement to a

nonimmigrant classification. Moreover, for certain classes of

nonimmigrants, there is also a statutory requirement incorporated in

the definitions of those nonimmigrant classifications (INA 101(a)(15))

that the alien establish that he or she has a residence abroad which

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the alien has no intention of abandoning. This is most commonly shown

by possession of a well-paying job, a home, family or other ties, etc.

which would, in themselves, compel the alien to return voluntarily to

that place after a temporary period in the United States.

Traditionally, the class of nonimmigrant most likely to fail this test

is visitor for business or pleasure (``B'') under INA 101(a)(15)(B). An

applicant may request reconsideration by the refusing consular officer

and all refusals must, by regulation (41.121(c)), be reviewed within

120 days by a senior officer, who looks at the information as

originally before the consular officer. While an applicant may also

file an entirely new application, the sooner such a new application is

filed after the original application, the less likely it is that

conditions relevant to the intending immigrant issue will have so

changed as to warrant issuance of a visa on the new application.

Nonetheless, at a number of consular offices, significant resources

are spent on ``re-applications'' based on nothing more than the

original application, resources that the posts cannot afford no matter

how strong their ``service'' orientation. Many posts continue to

experience increasing workloads without concomitant increasing staffs.

Some posts have therefore instituted local policies, similar to the

proposed rule, to limit expenditure of time and space on the many re-

applications which are non-meritorious, while reserving discretion to

accept re-applications in special circumstances, such as genuine

(documentable) emergencies. The Department believes it preferable to

have this procedure reflected in uniformly applicable regulations as

other procedures generally are.

The rules at 22 CFR 41.103(a) outline the general procedures for

filing an application for a nonimmigrant visa, and are thus the logical

location for this proposed rule. No regulation could prevent an alien

from filling out an application form; it is possible, however, to

prevent its ``filing'', i.e., acceptance for adjudication by a consular

officer.

This rule is proposed under the authority of INA 104 which invests

in the Secretary of State the right to promulgate regulations necessary

to administer immigration laws relating to the duties and functions of

consular officers.

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 imposes no reporting

or record-keeping 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 under E.O. 12998 and determined to

be in compliance therewith.

This rule is exempt from review under E.O. 12866, but has been

reviewed internally to ensure consistency therewith.

List of Subjects in 22 CFR Part 41

Aliens, Nonimmigrants, Passports, Visas.

In view of the foregoing, 22 CFR Part 41 is proposed to be amended

as follows:

PART 41--[AMENDED]

1. The authority citation for Part 41 continues to read:

Authority: 8 U.S.C. 1104.

2. Section 41.103 is amended by adding paragraph (a)(4), to read as

follows:

Sec. 41.103 Filing an application and Form OF-156

* * * * *

(4) A consular officer may refuse to accept for adjudication an

application for a nonimmigrant visa from an applicant whose prior

application at that post was denied under the provisions of INA 214(b)

within the preceding six months, unless the applicant presents

significantly different new evidence or evidence of a genuine

emergency.

* * * * *

Dated: March 10, 1998.

Mary A. Ryan,

Assistant Secretary for Consular Affairs.

[FR Doc. 98-6826 Filed 3-16-98; 8:45 am]

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