67564 Federal Register / Vol. 62, No. 248 / Monday, December 29, 1997 / Rules and Regulations

PART 40—[AMENDED]

1. The authority citation for Part 40 is

revised to read:

Authority: 8 U.S.C. 1104; Pub.L. 104–208,

110 Stat. 3009; 22 U.S.C. 2651a.

2. Section 40.41 is revised as follows:

§ 40.41 Public charge.

(a) Basis for Determination of

Ineligibility. Any determination that an

alien is ineligible under INA 212(a)(4)

must be predicated upon circumstances

indicating that, notwithstanding any

affidavit of support that may have been

filed on the alien’s behalf, the alien is

likely to become a public charge after

admission, or, if applicable, that the

alien has failed to fulfill the affidavit of

support requirement of INA

212(a)(4)(C).

(b) Affidavit of Support. Any alien

seeking an immigrant visa under INA

201(b)(2), 203(a), or 203(b), based upon

a petition filed by a relative of the alien

(or in the case of a petition filed under

INA 203(b) by an entity in which a

relative has a significant ownership

interest), shall be required to present to

the consular officer an affidavit of

support on a form that complies with

terms and conditions established by the

Attorney General.

(c) Joint Sponsors. Submission of one

or more additional affidavits of support

by a joint sponsor/sponsors is required

whenever the relative sponsor’s

household income and significant

assets, and the immigrant’s assets, do

not meet the Federal poverty line

requirements of INA 213A.

(d) Posting of Bond. A consular officer

may issue a visa to an alien who is

within the purview of INA 212(a)(4)

(subject to the affidavit of support

requirement and attribution of sponsor’s

income and resources under section

213A), upon receipt of a notice from INS

of the giving of a bond or undertaking

in accordance with INA 213 and INA

221(g), and provided further that the

officer is satisfied that the giving of such

bond or undertaking removes the

likelihood that the alien will become a

public charge within the meaning of this

section of the law and that the alien is

otherwise eligible in all respects.

(e) Prearranged Employment. An

immigrant visa applicant relying on an

offer of prearranged employment to

establish eligibility under INA 212(a)(4),

other than an offer of employment

certified by the Department of Labor

pursuant to INA 212(a)(5)(A), must

provide written confirmation of the

relevant information sworn and

subscribed to before a notary public by

the employer or an authorized employee

or agent of the employer. The signer’s

printed name and position or other

relationship with the employer must

accompany the signature.

(f) Use of Federal Poverty Line Where

INA 213A Not Applicable. An

immigrant visa applicant, not subject to

the requirements of INA 213A, and

relying solely on personal income to

establish eligibility under INA 212(a)(4),

who does not demonstrate an annual

income above the Federal poverty line,

as defined in INA 213A (h), and who is

without other adequate financial

resources, shall be presumed ineligible

under INA 212(a)(4).

Dated: December 19, 1997.

Mary A. Ryan,

Assistant Secretary for Consular Affairs.

[FR Doc. 97–33691 Filed 12–24–97; 8:45 am]

BILLING CODE 4710–06–P

DEPARTMENT OF STATE

Bureau of Consular Affairs

22 CFR Part 40

[Public Notice 2666]

Visas: Grounds of Ineligibility

AGENCY: Bureau of Consular Affairs,

Department of State.

ACTION: Interim rule with request for

comments.

SUMMARY: This rule implements the

Illegal Immigration Reform and

Immigrant Responsibility Act of 1996

(IIRIRA). The act adds new grounds of

inadmissibility to the United States for:

certain aliens who have not been

inoculated against infectious diseases

designated by statute or by the Advisory

Committee for Immunization Practices

(ACIP); aliens who have been subject to

certain civil penalties; alien student visa

abusers; aliens present in the United

States without admission or parole;

aliens who fail to attend removal

proceedings; unlawful alien voters; and

former citizens who renounced United

States citizenship in order to avoid

paying taxes. Some of the sections cited

above also provide for waivers of a

number of grounds of inadmissibility.

The rule also incorporates into the

Department’s regulations a delegation of

authority from the Immigration and

Naturalization Service pertaining to

waivers of inadmissibility under

§ 212(a)(1)(A)(ii) of the Immigration and

Nationality Act (INA), as amended.

Finally, this rule makes a few

miscellaneous technical corrections.

DATES: Effective Dates:

§ 40.11 September 30, 1996

§ 40.22 September 30, 1997.

§ 40.52 September 30, 1996

§ 40.61 April 1, 1997

§ 40.62 April 1, 1997

§ 40.66 September 30, 1996

§ 40.67 November 30, 1996

§ 40.91 April 1, 1997

§ 40.92 April 1, 1997

§ 40.93 April 1, 1997

§ 40.104 September 30, 1996

§ 40.105 September 30, 1996

Comment Date: Written comments

must be submitted on or before February

27, 1998.

ADDRESSES: Written comments may be

addressed to the Chief, Legislation and

Regulations Division, Visa Office, Room

L603–C, SA–1, Washington, D.C.

20520–0106.

FOR FURTHER INFORMATION CONTACT: H.

Edward Odom, Chief, Legislation and

Regulations Division, (202) 663–1204.

SUPPLEMENTARY INFORMATION: Some of

the provisions of IIRIRA implemented

by this rule became effective on the date

of enactment, September 30, 1996.

Others became effective on November

30, 1996. Still others became effective

on April 1, 1997. Therefore, in order to

coincide with the effective dates

mandated by Congress, the effective

dates are listed in the DATES section of

this document. Division ‘‘C’’ of the

Omnibus Consolidated Appropriations

Act, 1997 (the Illegal Immigration

Reform and Alien Responsibility Act of

1996 (IIRIRA)), made substantial

changes and additions to the INA

affecting numerous regulations at 22

CFR, Subchapter E. On November 21,

1996, the Department published a final

rule [61 FR 59182] to restructure the

numbering of 22 CFR Part 40 in light of

these additions. This rule incorporates

changes to those sections of Part 40

shown in the table below.

22 CFR Part Affected Heading IIRIRA Section No.

§ 40.11 ............... Medical Grounds of Ineligibility .............................................................. § 341

§ 40.22(b) ........... Suspended Sentences ........................................................................... § 322

§ 40.52 ............... Unqualified Physicians ........................................................................... N/A (typographic correction)

§ 40.61 ............... Aliens Present Without Admission or Parole ......................................... § 301
Federal Register / Vol. 62, No. 248 / Monday, December 29, 1997 / Rules and Regulations 67565

22 CFR Part Affected Heading IIRIRA Section No.

§ 40.62 ............... Failure to Attend Removal Proceedings ................................................ § 301

§ 40.66 ............... Aliens Subject of Civil Penalty ............................................................... § 345

§ 40.67 ............... Student Visa Abusers ............................................................................. § 346

§ 40.91 ............... Certain Aliens Previously Removed ....................................................... § 301

§ 40.92 ............... Aliens Unlawfully Present ....................................................................... § 301

§ 40.93 ............... Aliens Unlawfully Present After Previous Immigration Violations .......... § 301

§ 40.104 ............. Unlawful Voters ...................................................................................... § 347

§ 40.105 ............. Former Citizens Who Renounced Citizenship to Avoid Taxation .......... § 352

22 CFR 40.11—Medical Grounds of

Ineligibility

Section 341 of the Illegal Immigration

Reform and Immigrant Responsibility

Act of 1996 amended the medical

grounds of visa ineligibility under INA

212(a)(1)(A) to render inadmissible

under INA 212(a)(1)(A)(ii) all applicants

for immigrant visas and adjustment of

status who fail to present

documentation showing that they have

been vaccinated against a broad range of

vaccine-preventable diseases. The

amendments to INA 212(a)(1)(A) by

section 341 of IIRIRA became effective

on the date of enactment, September 30,

1996. The diseases, as specifically

identified in the statute are: mumps,

measles, rubella, polio, tetanus and

diphtheria toxoids, pertussis, influenza

type B and hepatitis B ‘‘and any other

diseases which are designated by the

Advisory Committee for Immunization

Practices (ACIP).’’ Section 341 of IIRIRA

also prescribed new waiver provisions

at INA 212(g)(2) for aliens: (1) who were

initially missing required vaccinations

but who subsequently obtained them; or

(2) for whom one or more of the

required vaccinations would be

medically inappropriate as certified by

the reviewing civil surgeon or panel

physician in accordance with

regulations established by the

Department of Health and Human

Services; or (3) who establish to the

satisfaction of the Attorney General that

compliance with the vaccination

requirements under INA 212(a)(1)(A)(ii)

would be contrary to the alien’s

religious beliefs or moral convictions. In

its conference report, Congress

indicated that the waiver authority of

INA 212(g)(2) should be exercised in

appropriate cases to permit admission

where, for example: (1) the alien is

unable to receive a safe dosage of a

particular vaccine; (2) it is certified that

the vaccine is unavailable in the alien’s

country of nationality; (3) an alien child

undergoing a vaccination series over a

given course of time has not had a

reasonable opportunity to complete the

required series; or (4) the alien is an

active member of a religious faith that

has notified the Attorney General that

such vaccination(s) would contradict

the fundamental tenets of the alien’s

religion.

The Department of State and the

Immigration and Naturalization Service

(INS) anticipate that large numbers of

immigrant visa applicants will be

rendered ineligible for visa issuance

under the provisions of INA

212(a)(1)(A)(ii) but will routinely be

eligible for waivers either because they

initially did not have a required

vaccination, but subsequently obtained

it, or because the panel physician

certified, in compliance with the HHS

regulations, that a particular vaccination

‘‘would not be medically appropriate.’’

To minimize the administrative burden

on INS and State, section 40.11(c) of this

rule incorporates into the Department’s

regulations INS’s delegation to consular

officers of the authority to grant waivers

of inadmissibility under INA

212(g)(2)(A) and (B). Under this

delegation by INS, no waiver

application (currently INS Form I–601)

or fee is required, and consular officers

may grant waivers under INA

212(g)(2)(A) and (B) without consulting

with INS beforehand. INS has not

delegated the authority to grant waivers

under 212(g)(2)(C) for religious/moral

reasons, however. Consistent with the

statute, these waiver requests will be

processed by INS on a case-by-case basis

pursuant to regulations published by the

Attorney General.

22 CFR 40.22—Suspended Sentences

Section 322 of IIRIRA amended

section 101(a) of the INA by adding new

paragraph 101(a)(48) which defines

‘‘conviction’’ and ‘‘term of

imprisonment.’’ The new language of

INA 101(a)(48)(B) is applicable to

convictions and sentences at any time

and directs that ‘‘any reference to a term

of imprisonment or a sentence with

respect to an offense is deemed to

include the period of incarceration or

confinement ordered by a court of law

regardless of any suspension of the

imposition or execution of that

imprisonment or sentence in whole or

part.’’ Under United States criminal law,

courts may either impose a sentence or

suspend imposition of the sentence. In

Matter of Castro, 19 I&N Dec. 692 (BIA

1988), the Board of Immigration

Appeals held that, when the imposition

of a sentence is suspended no sentence

has actually been imposed. This

decision was codified at 22 CFR

40.22(b), but has now been effectively

reversed by new INA paragraph

101(a)(48). Accordingly, the regulation

at 22 CFR 40.22(b) is being removed,

and 22 CFR 40.22(c), (d), (e), and (f) are

being redesignated (b), (c), (d), and (e),

respectively.

22 CFR 40.52—Unqualified Physicians

A technical correction is made to 22

CFR 40.52 changing the incorrect

reference cite ‘‘INA 203(a)(2) and (3)’’ to

read ‘‘INA 203(b)(2) and (3).’’

22 CFR 40.61—Aliens Present Without

Admission or Parole

Section 301(a), (b), and (d) of IIRIRA

replaced the terms ‘‘entry’’ and

‘‘excludable’’ with ‘‘admission’’ and

‘‘inadmissibility’’ (see INA 101(a)(13)

and 212(a)(6)(A) and (B)), and replaced

the term ‘‘deportation’’ with ‘‘removal’’

(see INA 212(a)(9)).

Section 301(c) of IIRIRA essentially

moved the former provisions of INA

212(a)(6)(A) and (B) to a new

subparagraph (9)(A), and modified them

by substituting new provisions relating

to admissions at INA subparagraphs

212(a)(6)(A) and (B). The first of these,

INA 212(a)(6)(A), makes inadmissible an

alien who is in the United States

without having been admitted or

paroled or who has come into this

country at a place other than a

designated port of entry. This provision

is written in the present tense and is

designed to make the aliens described

therein subject to grounds of

inadmissibility rather than grounds of

deportation. INA 212(a)(6)(A) applies

only to aliens who are present in the

United States. Thus, in the absence of

an order of removal, it has no direct

effect on the eligibility for a visa of an

alien at a consular post and the

regulation being added at 22 CFR 40.61

so states.
67566 Federal Register / Vol. 62, No. 248 / Monday, December 29, 1997 / Rules and Regulations

22 CFR 40.62—Failure To Attend

Removal Proceedings

New INA 212(a)(6)(B) provides that an

alien who, without reasonable cause,

fails or refuses to attend or remain in

attendance at removal proceedings shall

be inadmissible for five years following

departure or removal. Such an alien is

thus also ineligible for a visa for that

period of time. This ground of

inadmissibility is being applied only to

those aliens placed in removal

proceedings on or after April 1, 1997, as

set forth in INA 240, which was added

by section 304(a) of IIRIRA.

Regulations pertaining to revised INA

212(a)(6) are being added to 22 CFR

40.61 and 40.62.

22 CFR 40.66—Subject of Civil Penalty

The Immigration Act of 1990, Pub. L.

101–649, added as a new ground of visa

ineligibility, INA 212(a)(6)(F) rendering

inadmissible any alien who is the

subject of a final removal order for

violating INA 274C relating to civil

penalties for document fraud. INA 274C

provides civil penalties for persons

determined by an administrative law

judge to have been involved in virtually

any activity involving forged, altered or

stolen documents used to meet a

requirement or obtain a benefit under

the INA. Section 345 of IIRIRA amended

INA 212(a)(6)(F) by designating this

ground of inadmissibility as subsection

(F)(i) and creating a new subsection

(F)(ii) providing for waivers of (F)(i)

inadmissibilities under new INA

212(d)(12). (Waivers of the INA

212(a)(6)(F) (now (F)(i)) ground of

inadmissibility were not available prior

to the enactment of IIRIRA). Under INA

212(d)(12), the Attorney General may

waive this ineligibility for certain

permanent residents who have

temporarily proceeded abroad

voluntarily and not under an order of

deportation or removal and are

otherwise admissible to the United

States as returning residents, and for

aliens seeking admission or adjustment

as immediate relatives or family-based

beneficiaries, if the offense was

committed solely to assist the alien’s

spouse or child and no previous civil

money penalty was imposed against the

alien under INA section 274C. The

Department is, therefore, adding new

regulations at 22 CFR 40.66 with respect

to this new ground of inadmissibility

and to provide for the above waiver.

22 CFR 40.67—Student Visa Abusers

Section 346 of IIRIRA added a new

ground of inadmissibility for foreign

student visa abusers. Under this ground,

an alien having F–1 status as a student

under INA 101(a)(15)(F)(i) who violates

the provisions of INA 214(l) is

inadmissible until he or she has been

outside the United States for five

continuous years after the date of

violation. INA 214(l) became effective

November 30, 1996, and applies only to

aliens who initially obtain F–1 status on

or after that date, or whose F–1 status

is extended on or after that date. Under

the provisions of INA 214(l), alien

students may not be granted F–1 student

status to attend a public elementary

school or a publicly funded adult

education program. Alien students may

attend a public secondary school for no

more than one year in F–1 classification

and must reimburse the school system

for the full, unsubsidized per capita cost

of their education. Alien students may

transfer from a private school to a public

secondary school only if they meet the

above payment requirements and can

demonstrate that they will not exceed

the one-year time limitation established

for public secondary school attendance.

However, INA 214(l) prohibits foreign

students in F–1 status who are attending

private schools from transferring into

public elementary schools or publicly

funded adult education programs

(including language programs). The

Department is, therefore, adding a new

regulation at 22 CFR 40.67 to provide

for the new ground of inadmissibility.

22 CFR 40.91—Certain Aliens

Previously Removed

The provisions of INA 212(a)(9) were

redesignated INA 212(a)(10) under

IIRIRA 301(b). These regulations,

formerly found at 22 CFR 40.91, 40.92

and 40.93, were redesignated as 40.101,

40.102 and 40.103 in the Department

publication of November 21, 1996 [61

FR 59182]. The new provisions of INA

212(a)(9) (similar to the former INA

212(a)(6)(A) and (B)) were inserted as

subparagraphs 212(a)(9)(A)(i) and (ii).

The only substantive difference between

the new INA 212(a)(9)(A) and the former

INA 212(a)(6)(A) and (B) lies in the

varying lengths of inadmissibility. The

prior INA 212(a)(6)(A) provided for a

one-year visa ineligibility period for an

alien who had previously been excluded

and deported. INA 212(a)(9)(A)(i) makes

ineligible and inadmissible for 5 years

an alien who has been found

inadmissible and ordered removed,

whether summarily at the port of entry

or after removal proceedings under INA

240. The period of inadmissibility is 20

years after a second (or subsequent)

removal and is permanent if the alien

has been convicted of an aggravated

felony. Similarly, the prior INA

212(a)(6)(B) rendered an alien who had

previously been deported ineligible for

a visa for 5 years (or 20 if the alien had

been convicted of an aggravated felony),

whereas in the new INA 212(a)(9)(A)(ii),

the inadmissibility periods are 10 years

following the first removal, 20 years

after a second (or subsequent) removal,

and permanently if the alien has been

convicted of an aggravated felony.

Either clause becomes inapplicable if

prior to the alien’s embarkation at a

place outside the United States the

Attorney General (in advance) grants the

alien permission to reapply for

admission. Regulations pertaining to the

prior provisions of INA 212(a)(6), with

appropriate amendments, have been

moved to 22 CFR 40.91. The

redesignated 22 CFR 40.91 contains the

revised regulations implementing these

changes.

22 CFR 40.92—Aliens Unlawfully

Present

New INA 212(a)(9)(B)(i)(I) bars for

three years after departure an alien who

was ‘‘unlawfully present’’ in the United

States (as defined in (B)(ii)) for a period

of more than 180 days but less than one

year, provided the alien departed

voluntarily before the commencement of

removal proceedings. Subparagraph

(9)(B)(iv) provides for the ‘‘tolling’’

(suspension) of up to 120 days in the

calculation of an alien’s ‘‘unlawful

presence’’ if: (1) the alien had been

lawfully admitted or paroled and

subsequently filed a nonfrivolous

application for a change or extension of

status before the end of the authorized

period of stay (but became an overstay

while the application was being

adjudicated) and, (2) had not worked

without authorization.

If the alien was in the United States

unlawfully for one year or more as

described at INA 212(a)(9)(B)(i)(II), the

inadmissibility period is ten years. The

new regulation at 22 CFR 40.92 provides

for visa ineligibility under (9)(B)(i) for

three years or ten years, as appropriate,

and notes the possibility for a waiver

under (9)(B)(v) for an immigrant

applicant if the Attorney General finds

that the refusal of admission would

result in extreme hardship to the United

States citizen (or lawful permanent

resident) spouse or parent of such alien.

INA 212(a)(9)(B) does not contain a

provision comparable to that in INA

212(a)(9)(A) for the Attorney General to

consent to the alien’s reapplying prior to

the expiration of the time frames

described therein. There are, however,

exceptions to the provisions of INA

212(a)(9)(B)(i) for minors, asylees, the

beneficiaries of family unity protection,

and battered spouses and children who

can establish there was a substantial
Federal Register / Vol. 62, No. 248 / Monday, December 29, 1997 / Rules and Regulations 67567

connection between their status

violation and the abuse.

The definition of ‘‘unlawfully

present’’ under INA 212(a)(9)(B)(ii)

includes both remaining in the United

States beyond the period of authorized

stay and having entered the United

States without being admitted or

paroled.

22 CFR 40.93—Aliens Unlawfully

Present After Previous Immigration

Violation

INA subparagraph 212(a)(9)(C)(i)(I)

renders inadmissible any alien who has

been in the United States unlawfully for

an aggregate period of more than 1 year

and who subsequently enters or

attempts to enter without being

admitted (i.e., without lawfully entering

after inspection and authorization [see

INA 101(a)(13)]). INA 212(a)(9)(C)(i)(II)

renders inadmissible any alien who has

been ordered removed under INA

235(b)(1), 240, or any other provision of

law, and who enters or attempts to enter

the United States without being

admitted. INA 212(a)(9)(C)(ii) grants an

exception to the (otherwise) permanent

inadmissibility for an alien who, at least

ten years after departure and prior to

embarking for the United States, obtains

the Attorney General’s consent to

reapply for admission. A new regulation

is established at 22 CFR 40.93

pertaining to aliens removed as a result

of unlawful entry (or attempted entry)

following such prior immigration

violation or removal order.

The amendments to INA 212(a)(6)(A)

and (B) and 212(a)(9) described above

went into effect on April 1, 1997.

22 CFR 40.104—Unlawful Voters

Section 347 of IIRIRA created a new

ground of visa ineligibility (INA

212(a)(10)(D)) for any alien who has

voted in violation of any Federal, State

or local constitutional provision, statute,

ordinance, or regulation. It applies to

aliens voting before, on, or after

September 30, 1996. The Department is

providing new regulations at 22 CFR

40.104 to comport with this addition.

22 CFR 40.105—Former Citizens Who

Renounced Citizenship To Avoid

Taxation

Section 352(a) of IIRIRA amended the

INA to add a new ground of ineligibility

at INA 212(a)(10)(E), which renders

ineligible for a visa any alien who has

been determined by the Attorney

General to have renounced United

States citizenship to avoid taxation by

the United States. This is effective for

renunciations on or after September 30,

1996, the effective date of IIRIRA. New

regulations are added at 22 CFR 40.105.

Interim rule

This rule modifies 22 CFR,

Subchapter E, Subparts B, C, F, G and

J, to reflect changes made by Division

‘‘C’’ of Pub. L. 104–208, the illegal

Immigration Reform and Immigrant

Responsibility Act of 1996 (IIRIRA). The

implementation of this rule as an

interim rule, with provisions for postpromulgation public comments, is based

upon the ‘‘good cause’’ exception found

at 5 U.S.C. 553(b)(B) and 553(d)(3)

because it implements statutory

provisions already in effect. Some of the

provisions of IIRIRA implemented by

this rule became effective on the date of

enactment, September 30, 1996.

Another became effective on November

30, 1996. Still others became effective

on April 1, 1997. Therefore, the

provisions of this interim rule were

effective on September 30, 1996, except

that § 40.67 became effective November

30, 1996 and §§ 40.61, 40.62, 40.91,

40.92, and 40.93 were effective on April

1, 1997, to coincide with the dates

mandated by Congress.

Pursuant to § 605(b) of the Regulatory

Flexibility Act, this rule will not have

a significant economic impact on a

substantial number of small entities

because it merely implements statutory

requirements already in effect. 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 by E.O. 12988 and

is certified 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 40

Aliens, Immigrants, Immigration,

Nonimmigrants, Passports and visas.

In view of the foregoing, 22 CFR is

amended as follows:

PART 40—[AMENDED]

1. The authority citation for Part 40 is

amended to read as follows:

Authority: 8 U.S.C. 1104; Pub. L. 104–208,

110 Stat. 3009; 22 U.S.C. 26512.

2. Section 40.11 is amended by

revising paragraph (b) and adding

paragraph (c) to read as follows:

§ 40.11 Medical grounds of ineligibility.

* * * * *

(b) Waiver of ineligibility—INA 212(g).

If an immigrant visa applicant is

inadmissible under INA 212(a)(1)(A)(i),

(ii), or (iii) but is qualified to seek the

benefits of INA 212(g)(1)(A) or (B),

212(g)(2)(C), or 212(g)(3), the consular

officer shall inform the alien of the

procedure for applying to INS for relief

under the applicable provision of law. A

visa may not be issued to the alien until

the consular officer has received

notification from INS of the approval of

the alien’s application under INA

212(g), unless the consular officer has

been delegated authority by the

Attorney General to grant the particular

waiver under INA 212(g).

(c) Waiver authority—INA

212(g)(2)(A) and (B). The consular

officer may waive section

212(a)(1)(A)(ii) visa ineligibility if the

alien qualifies for such waiver under the

provisions of INA 212(g)(2)(A) or (B).

§ 40.22 Multiple criminal convictions.

3. Section 40.22 is revised by

removing paragraph (b) and

redesignating paragraphs (c), (d), (e) and

(f) as (b), (c), (d) and (e), respectively.

§ 40.52 Unqualified physicians.

4. Section 40.52 is amended by

revising ‘‘203(a)(2) or (3)’’ to read

‘‘203(b)(2) or (3).’’

5. Section 40.61 is revised to read as

follows:

§ 40.61 Aliens present without admission

or parole.

INA 212(a)(6)(A)(i) does not apply at

the time of visa issuance.

6. Section 40.62 is revised to read as

follows:

§ 40.62 Failure to attend removal

proceedings.

An alien who without reasonable

cause failed to attend, or to remain in

attendance at, a hearing initiated on or

after April 1, 1997, under INA 240 to

determine inadmissibility or

deportability shall be ineligible for a

visa under INA 212(a)(6)(B) for five

years following the alien’s subsequent

departure or removal from the United

States.

7. Section 40.66 is revised to read as

follows:

§ 40.66 Subject of civil penalty.

(a) General. An alien who is the

subject of a final order imposing a civil

penalty for a violation under INA 274C

shall be ineligible for a visa under INA

212(a)(6)(F).

(b) Waiver of ineligibility. If an

applicant is ineligible under paragraph

(a) of this section but appears to the

consular officer to meet the

prerequisites for seeking the benefits of

INA 212(d)(12), the consular officer

shall inform the alien of the procedure

for applying to INS for relief under that

provision of law. A visa may not be

issued to the alien until the consular

officer has received notification from
67568 Federal Register / Vol. 62, No. 248 / Monday, December 29, 1997 / Rules and Regulations

INS of the approval of the alien’s

application under INA 212(d)(12).

8. Section 40.67 is added to read as

follows:

§ 40.67 Student visa abusers.

An alien ineligible under the

provisions of INA 212(a)(6)(G) shall not

be issued a visa unless the alien has

complied with the time limitation set

forth therein.

9. Section 40.91 is revised to read as

follows:

§ 40.91 Certain aliens previously removed.

(a) 5-year bar. An alien who has been

found inadmissible, whether as a result

of a summary determination of

inadmissibility at the port of entry

under INA 235(b)(1) or of a finding of

inadmissibility resulting from

proceedings under INA 240 initiated

upon the alien’s arrival in the United

States, shall be ineligible for a visa

under INA 212(a)(9)(A)(i) for 5 years

following removal from the United

States if prior to the alien’s

reembarkation at a place outside the

United States that is the alien’s first

such removal.

(b) 10-year bar. An alien who has

otherwise been removed from the

United States under any provision of

law, or who departed while an order of

removal was in effect, is ineligible for a

visa under INA 212(a)(9)(A)(ii) for 10

years following such removal or

departure from the United States.

(c) 20-year bar. An alien who has been

removed from the United States two or

more times shall be ineligible for a visa

under INA 212(a)(9)(A)(i) or INA

212(a)(9)(A)(ii), as appropriate, for 20

years following the most recent such

removal or departure.

(d) Permanent bar. If an alien who has

been removed has also been convicted

of an aggravated felony, the alien is

permanently ineligible for a visa under

INA 212(a)(9)(A)(i) or 212(a)(9)(A)(ii), as

appropriate.

(e) Exceptions. An alien shall not be

ineligible for a visa under INA

212(a)(9)(A)(i) or (ii) if the Attorney

General has consented to the alien’s

application for admission.

10. Section 40.92 is revised to read as

follows:

§ 40.92 Aliens unlawfully present.

(a) 3-year bar. An alien described in

INA 212(a)(9)(B)(i)(I) shall be ineligible

for a visa for 3 years following departure

from the United States.

(b) 10-year bar. An alien described in

INA 212(a)(9)(B)(i)(II) shall be ineligible

for a visa for 10 years following

departure from the United States.

(c) Waiver. If a visa applicant is

inadmissible under paragraph (a) or (b)

of this section but appears to the

consular officer to meet the

prerequisites for seeking the benefits of

INA 212(a)(9)(B)(v), the alien shall be

informed of the procedure for applying

to INS for relief under that provision of

law.

11. Section 40.93 is revised to read as

follows:

§ 40.93 Aliens unlawfully present after

previous immigration violation.

An alien described in INA

212(a)(9)(C)(i) is permanently ineligible

for a visa unless the Attorney General

consents to the alien’s application for

readmission not less than 10 years

following the alien’s last departure from

the United States. Such application for

readmission shall be made prior to the

alien’s reembarkation at a place outside

the United States.

12. Section 40.104 is revised to read

as follows:

§ 40.104 Unlawful voters.

An alien who at any time has voted

in violation of any Federal, State, or

local constitutional provision, statute,

ordinance or regulation is ineligible for

a visa under INA 212(a)(10)(D).

13. Section 40.105 is revised to read

as follows:

§ 40.105 Former citizens who renounced

citizenship to avoid taxation.

An alien who is a former citizen of the

United States, who on or after

September 30, 1996, has officially

renounced United States citizenship

and who has been determined by the

Attorney General to have renounced

citizenship to avoid United States

taxation, is ineligible for a visa under

INA 212(a)(10)(E).

December 10, 1997.

Mary A. Ryan,

Assistant Secretary for Consular Affairs.

[FR Doc. 97–33257 Filed 12–24–97; 8:45 am]

BILLING CODE 4710–06–P

DEPARTMENT OF THE TREASURY

Internal Revenue Service

26 CFR Part 40

[TD 8740]

RIN 1545–AV03

Deposits of Excise Taxes

AGENCY: Internal Revenue Service (IRS),

Treasury.

ACTION: Temporary regulations.

SUMMARY: This document contains

temporary regulations relating to the

availability of the safe harbor deposit

rule based on look-back quarter liability

and affects persons required to make

deposits of excise taxes. This document

also contains temporary regulations

relating to floor stocks taxes and affects

persons liable for those taxes. The

regulations implement certain changes

made by the Small Business Job

Protection Act of 1996 (the 1996 Act)

and the Airport and Airway Trust Fund

Tax Reinstatement Act of 1997 (the 1997

Act). The text of these regulations also

serves as the text of the proposed

regulations set forth in the notice of

proposed rulemaking on this subject in

the Proposed Rules section of this issue

of the Federal Register.

DATES: These regulations are effective

December 29, 1997. For dates of

applicability, see §§ 40.6302(c)–1T and

40.6302(c)–2T.

FOR FURTHER INFORMATION CONTACT:

Ruth Hoffman (202) 622–3130 (not a

toll-free call).

SUPPLEMENTARY INFORMATION:

Background

This document contains amendments

to the Excise Tax Procedural

Regulations (26 CFR part 40) that

implement certain changes made by the

1996 Act and the 1997 Act.

The aviation excise taxes that expired

on December 31, 1995, were reinstated

by the 1996 Act for the period from

August 27 through December 31, 1996,

by the 1997 Act for the period from

March 7 through September 30, 1997,

and were extended, with modifications,

for the period from October 1, 1997,

through September 30, 2007.

Deposit Safe Harbor Rules

Sections 40.6302(c)–1(c)(2) and

40.6302(c)–2(b)(2) (relating to deposit

safe harbors) currently provide,

generally, that a person can satisfy

excise tax deposit obligations for a

calendar quarter by depositing an

amount equal to the person’s excise tax

liability reported on the return for the

second preceding quarter (the look-back

quarter). For this purpose, the tax

liability for the look-back quarter must

be modified to take into account any

increase in rates in the current quarter,

but the safe harbor does not specifically

address the effect of the enactment of a

new tax or the reinstatement of an

expired tax. Notice 97–15, 1997–8 I.R.B.

23, and section 2(f) of the 1997 Act

provide that the look-back safe harbor

shall not apply with respect to any tax

unless the tax was imposed throughout

the look-back period.

The temporary regulations modify the

look-back safe harbor rules to reflect this