Visas: Documentation of Nonimmigrants Under the Immigration and Nationality Act, as AmendedBorder Crossing Cards

DEPARTMENT OF STATE

22 CFR Part 41

[Public Notice 2976]

RIN 1400-AA90

Visas: Documentation of Nonimmigrants Under the Immigration and

Nationality Act, as Amended--Border Crossing Cards

AGENCY: Department of State, Bureau of Consular Affairs.

ACTION: Final rule.

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SUMMARY: This is a final rule adopting and/or amending Department of

State regulations pertaining to the nonimmigrant border crossing

identification card (BCC) and those pertaining to the requirements for

entry of Mexican nationals into the United States. The rule is

necessitated, in part, by a change in the law, which now specifies that

regulations pertaining to the BCC contain a requirement for the

inclusion of a machine-readable biometric identifier in such cards.

The rule provides authority for consular officers to issue to

Mexican citizens who are residents of Mexico a combined B-1/B-2 visa

and border crossing card (B-1/B-2 Visa/BCC) as a stand-alone card

containing a machine-readable biometric identifier; specifies the

conditions under which the new stand-alone card will be considered

invalidated; waives the requirements for the presentation of a passport

for all applicants for the card, provided the applicant presents other

acceptable documentation of nationality and identity; includes a waiver

of the visa and passport requirement for Mexican nationals entering the

United States for the purpose of obtaining official Mexican documents

from a Mexican consular office in the United States side of the border;

and adopts changes to the regulations pertaining to the issuance and

revocation of Canadian border crossing cards made necessary by the same

change in the law.

EFFECTIVE DATE: August 19, 1999.

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

Regulations Division, Visa Services, Department of State, Washington,

DC 20520-0106, (202) 663-1204, [email protected].

SUPPLEMENTARY INFORMATION: The Department published an interim rule

with request for comments [63 FR 16895] on April 7, 1998. The

Department received one timely comment in response to the interim rule.

This final rule adopts without changes the revisions made in the

interim rule to sections 41.2(g) and 41.122(a)(4). The rule adopts,

with minor word changes, the revisions to sections 41.32 and 41.33.

Analysis of Comment

The comment received expressed a concern that requiring the

biometric reader in the card could cause significant time increases for

processing the large volume of traffic that crosses the land borders

between the United States and Canada and the United States and Mexico.

The commentator specifically focused on the negative effect the BCC

would have on time-sensitive commercial trade flows between the United

States and its two largest trading partners.

The Department's regulations, however, deal with the content and

issuance of the BCC, and not the processing of the cards at land

borders between the United States, Canada and Mexico. Those procedures

are left to the Immigration and Naturalization Service. Further, both

the information on the face of the card and the biometric data

contained in the card have been designed to ensure rapid processing of

traffic on land-borders. The Department believes, therefore, that the

design of the card has been tailored in a fashion that meets both the

Congressional directive to include a biometric identifier in the BCC/

NIV, in an effort to ameliorate the incidence of fraud associated with

the card, and the commentator's concern of ensuring ease of commerce

between the United States and its neighbors. Finally, the commentator

suggested that the BCC/NIV biometric program be delayed pending a study

of its potential effect on land border traffic. The Department,

however, was constrained by IIRIRA Sec. 104 to begin issuance of

biometric inclusive cards as of April 1, 1998. The Department,

therefore, does not deem it necessary to comply with the commenter's

request.

Passport Requirement

When originally published, the interim rule contained an amendment

to 22 CFR 41.2(g)(4) reflecting an agreement pursuant to INA 212(d)(4)

between the Department of State and the INS to waive the passport

requirement contained in INA 212(a)(7)(B)(i)(I) for certain applicants

for the new B-1/B-2 Visa/BCC. This agreement also was reflected in the

language of 22 CFR 41.32(a)(2)(iii) in the interim rule. Since that

time, however, the Department and INS have agreed to a further change

in policy regarding the documentation necessary for the BCC application

process.

Recently, the Department gained information that Mexican

authorities adjudicate the application for a Certificate of Mexican

Nationality (CMN) as rigorously as a Mexican passport application. In

addition, if a consular officer has a question regarding the validity

of a CMN, the means to investigate the situation has been shown to be

similar to that of investigating a questionable passport. The

Department has determined, therefore, that the CMN, when used in

conjunction with another piece of identification that includes a photo,

will be sufficient for consular officers to adjudicate a BCC

application. Section 41.32(a)(2), as contained in the interim

regulation, has been amended to reflect this concept. The Department

believes that this change does not significantly alter the substance or

intent of the regulation and that it is, therefore, not necessary to

open the change to public comment.

Photo Requirement

The interim rule, at section 41.42(a)(2)(ii), required that all

applicants for the BCC provide one photograph of the size specified in

the application, Form OF-156. This photo was to be used for record

keeping purposes because it was not necessary for the production for

the card itself. Because the BCC/NIV uses a digitized image on the

card, the Department has decided it is no longer necessary for the

applicant to submit a photo. This change has been reflected in the

final regulation.

The remaining sections of the regulations were discussed in detail

at Federal Register Public Notice 2773 and will be adopted as

originally published, except for the minor changes indicated below.

The Regulatory Flexibility Act

Pursuant to sec. 605(b) of the Regulatory Flexibility Act, the

Department has assessed the potential impact of this rule and it has

been determined, and the Assistant Secretary for Consular Affairs

hereby certifies, that it will not have a significant economic impact

on a substantial number of small entities. The rule has no economic

effect beyond that of the statutory requirements already in effect,

which it implements.

5 U.S.C. Chapter 8

As required by 5 U.S.C. chapter 8, the Department has screened this

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

80412.

[[Page 45163]]

Paperwork Reduction Act

The Department of State, Bureau of Consular Affairs, Visa Services

has received OMB emergency clearance for the information collection

instrument, Nonimmigrant Visa Application (OF-156), that underlies the

nonimmigrant border crossing identification card (BCC) contained in

this rule. It is estimated that 1,800,000 OF-156s will be completed

annually to support the issuance of BCCs, and that (at 10 minutes per

OF-156) this will require 300,000 hours of the time of aliens. Comments

regarding OF-156 information collections in support of this rule should

be identified as such and should be directed to Charles S. Cunningham,

Directives Management Branch, U.S. Department of State, Washington,

D.C. 20520, (202) 647-0596. Such comments should be received within 60

days of publication of this rule.

E.O. 12988 and E.O. 12866

This rule has been reviewed as required by E.O. 12988 and

determined to meet the applicable regulatory standards it describes.

Although exempted from E.O. 12866, this rule has been reviewed to

ensure consistency with it.

List of Subjects in 22 CFR Part 41

Aliens, Nonimmigrants, Passports and visas, Temporary visitors.

Accordingly, the interim rule published on April 7, 1998 at 63 FR

16892 is adopted as final with the following changes:

PART 41--[AMENDED]

1. The authority citation for part 41 continues to read as follows:

Authority: 8 U.S.C. 1104.

2. Revise Section 41.32 to read as follows:

Sec. 41.32 Nonresident alien Mexican border crossing identification

cards; combined border crossing identification cards and B-1/B-2

visitor visas.

(a) Combined B-1/B-2 visitor visa and border crossing

identification card (B-1/B-2 Visa/BCC). (1) Authorization for issuance.

Consular officers assigned to a consular office in Mexico designated by

the Deputy Assistant Secretary for Visa Services for such purpose may

issue a border crossing identification card, as that term is defined in

INA 101(a)(6), in combination with a B-1/B-2 nonimmigrant visitor visa

(B-1/B-2 Visa/BCC), to a nonimmigrant alien who:

(i) Is a citizen and resident of Mexico;

(ii) Seeks to enter the United States as a temporary visitor for

business or pleasure as defined in INA 101(a)(15)(B) for periods of

stay not exceeding six months;

(iii) Is otherwise eligible for a B-1 or B-2 temporary visitor visa

or is the beneficiary of a waiver under INA 212(d)(3)(A) of a ground of

ineligibility, which waiver is valid for multiple applications for

admission into the United States and for a period of at least ten years

and which contains no restrictions as to extensions of temporary stay

or itinerary.

(2) Procedure for application. Mexican applicants shall apply for a

B-1/B-2 Visa/BCC at any U.S. consular office in Mexico designated by

the Deputy Assistant Secretary of State for Visa Services pursuant to

paragraph (a) of this section to accept such applications. The

application shall be submitted on Form OF-156. The application shall be

supported by:

(i) Evidence of Mexican citizenship and residence;

(ii) The applicant's digitized photographic image taken at the time

of the application; and

(iii) A valid Mexican Federal passport or a Certificate of Mexican

Nationality (as long as the Certificate of Mexican Nationality is

supported by another form of identification which includes a

photograph) unless the applicant is the bearer of a currently valid or

expired United States visa or BCC or B-1/B-2 Visa/BCC which has neither

been voided by operation of law nor revoked by a consular or

immigration officer. BCCs that, after October 1, 2001, or such other

date as may be enacted, are no longer useable for entry due only to the

absence of a machine readable biometric identifier shall not be

considered to have been voided or revoked for the purpose of making an

application under this section.

(iv) A digitized impression of the prints of the alien's index

fingers taken at the time of the application.

(3) Personal appearance. Each applicant shall appear in person

before a consular officer to be interviewed regarding eligibility for a

visitor visa, unless the consular officer waives personal appearance.

(4) Issuance and format. A B-1/B-2 Visa/BCC issued on or after

April 1, 1998, shall consist of a card, Form DSP-150, containing a

machine-readable biometric identifier. It shall contain the following

data:

(i) Post symbol;

(ii) Number of the card;

(iii) Date of issuance;

(iv) Indicia ``B-1/B-2 Visa and Border Crossing Card'';

(v) Name, date of birth, and sex of the person to whom issued; and

(vi) Date of expiration.

(b) Validity. A BCC previously issued by a consular officer in

Mexico on Form I-186, Nonresident Alien Mexican Border Crossing Card,

or Form I-586, Nonresident Alien Border Crossing Card, is valid until

the expiration date on the card (if any) unless previously revoked, but

not later than the date, currently October 1, 2001, on which a machine-

readable, biometric identifier in the card is required in order for the

card to be usable for entry. The BCC portion of a B-1/B-2 Visa/BCC

issued to a Mexican national pursuant to provisions of this section

contained in the 22 CFR, parts 1 to 299, edition revised as of April 1,

1998 is valid until the date of expiration, unless previously revoked,

but not later than the date, currently October 1, 2001, on which a

machine-readable, biometric identifier in the card is required in order

for the card to be usable for entry.

(c) Revocation. A consular or immigration officer may revoke a BCC

issued on Form I-186 or Form I-586, or a B-1/B-2 Visa/BCC under the

provisions of Sec. 41.122, or if the consular or immigration officer

determines that the alien to whom any such document was issued has

ceased to be a resident and/or a citizen of Mexico. Upon revocation,

the consular or immigration officer shall notify the issuing consular

or immigration office. If the revoked document is a card, the consular

or immigration officer shall take possession of the card and physically

cancel it under standard security conditions. If the revoked document

is a stamp in a passport the consular or immigration officer shall

write or stamp ``canceled'' on the face of the document.

(d) Voidance. (1) The voiding pursuant to INA 222(g) of the visa

portion of a B-1/B-2 Visa/BCC issued at any time by a consular officer

in Mexico under provisions of this section contained in the 22 CFR,

parts 1 to 299, edition revised as of April 1, 1998, also voids the BCC

portion of that document.

(2) A BCC issued at any time by a consular officer in Mexico under

any provisions of this section contained in the 22 CFR, parts 1 to 299,

edition revised as of April 1, 1998, is void if a consular or

immigration officer determines that the alien has violated the

conditions of the alien's admission into the United States, including

the period of stay authorized by the Attorney General.

(3) A consular or immigration officer shall immediately take

possession of a card determined to be void under paragraphs (d) (1) or

(2) of this section

[[Page 45164]]

and physically cancel it under standard security conditions. If the

document voided in paragraphs (d) (1) or (2) is in the form of a stamp

in a passport the officer shall write or stamp ``canceled'' across the

face of the document.

(e) Replacement. When a B-1/B-2 Visa/BCC issued under the

provisions of this section, or a BCC or B-1/B-2 Visa/BCC issued under

any provisions of this section contained in the 22 CFR, parts 1 to 299,

edition revised as of April 1, 1998, has been lost, mutilated,

destroyed, or expired, the person to whom such card was issued may

apply for a new B-1/B-2 Visa/BCC as provided in this section.

3. Revise section 41.33 to read as follows:

Sec. 41.33 Nonresident alien Canadian border crossing identification

card (BCC).

(a) Validity of Canadian BCC. A Canadian BCC or the BCC portion of

a Canadian B-1/B-2 Visa/BCC issued to a permanent resident of Canada

pursuant to provisions of this section contained in the 22 CFR, parts 1

to 299, edition revised as of April 1, 1998, is valid until the date of

expiration, if any, unless previously revoked, but not later than the

date, currently October 1, 2001, on which a machine readable biometric

identifier is required in order for a BCC to be usable for entry.

(b) Revocation of Canadian BCC. A consular or immigration officer

may revoke a BCC or a B-1/B-2 Visa/BCC issued in Canada at any time

under the provisions of Sec. 41.122, or if the consular or immigration

officer determines that the alien to whom any such document was issued

has ceased to be a permanent resident of Canada. Upon revocation, the

consular or immigration officer shall notify the issuing consular

office and if the revoked document is a card, the consular or

immigration officer shall take possession of the card and physically

cancel it under standard security conditions. If the revoked document

is a stamp in a passport the consular or immigration officer shall

write or stamp ``canceled'' on the face of the document.

(c) Voidance. (1) The voiding pursuant to INA 222(g) of the visa

portion of a B-1/B-2 Visa/BCC issued at any time by a consular officer

in Canada under provisions of this section contained in the 22 CFR,

parts 1 to 299, edition revised as of April 1, 1998, also voids the BCC

portion of that document.

(2) A BCC issued at any time by a consular officer in Canada under

any provisions of this section contained in the 22 CFR, parts 1 to 299,

edition revised as of April 1, 1998, is void if a consular or

immigration officer finds that the alien has violated the conditions of

the alien's admission into the United States, including the period of

stay authorized by the Attorney General.

(3) A consular or immigration officer shall immediately take

possession of a card determined to be void under paragraphs (c) (1) or

(2) of this section and physically cancel it under standard security

conditions. If the document voided under paragraphs (c) (1) or (2) is

in the form of a stamp in a passport the officer shall write or stamp

``canceled'' across the face of the document.

Dated: August 10, 1999.

Mary A. Ryan,

Assistant Secretary for Consular Affairs.

[FR Doc. 99-21566 Filed 8-18-99; 8:45 am]

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