[Federal Register Volume 62, Number 248 (Monday, December 29, 1997)]
[Rules and Regulations]
[Pages 67563-67564]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-33691]


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DEPARTMENT OF STATE

Bureau of Consular Affairs

22 CFR Part 40

[Public Notice 2674]


VISAS: Public Charge

AGENCY: Department of State, Bureau of Consular Affairs.

ACTION: Interim rule with request for comments.

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SUMMARY: This rule amends Department of State regulations by 
establishing uniform procedures for the acceptance of affidavits of 
support by consular posts abroad as required by the Immigration and 
Nationality Act (INA). This rule is necessary to ensure proper 
adjudication of immigrant visas under the INA.

DATES: Effective Date: This interim rule is effective on December 19, 
1997. Comment Date: Submit comments on or before February 27, 1998.

ADDRESSES: Please submit written comments to the Chief, Legislation and 
Regulations Division, Visa Office, Room L603-C, SA-1, Washington, D.C. 
20520-0106. Comments will be made available for public inspection at 
the Department of State's Public Reading Room, 2201 C Street, NW, 
Washington, DC, 20520.

FOR FURTHER INFORMATION CONTACT: Ron Acker, Visa Regulations 
Coordinator, Legislation and Regulations Division, Visa Office, Room 
L603-C, SA-1, Washington, DC, 20520-0106 (<a href="/cdn-cgi/l/email-protection" class="__cf_email__" data-cfemail="b1d0d2dad4c3c3ddf1e2f080e6e1fef09fc4c29c">[email protected]</a>
state.gov).

SUPPLEMENTARY INFORMATION: On September 30, 1996, the President signed 
the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 
(IIRIRA), Pub. L. 104 208, which, among numerous other changes, amended 
section 212(a)(4) of the Immigration and Nationality Act (INA) to 
provide that an alien is excludable or inadmissible to the United 
States based upon the likelihood of becoming a public charge if the 
alien is seeking an immigrant visa, admission as an immigrant, or 
adjustment of status as: (a) An immediate relative, (b) a family-based 
immigrant, or (c) an employment-based immigrant (if a sponsoring 
relative is the petitioning employer or owns a significant ownership 
interest in the entity that is the petitioning employer) unless the 
alien is the beneficiary of an affidavit of support filed under INA 
section 213A. INA 213A specifies the conditions that must be met in 
order for an affidavit of support to be acceptable for use by a visa 
applicant to establish eligibility under INA 212(a)(4)(C).
    Under the provisions of IIRIRA (Title V, Subtitle C, Section 
551(c)), the Attorney General is responsible for promulgating the 
standard forms to be used in connection with the filing of affidavits 
of support and in establishing the effective date upon which such forms 
are required. The Immigration and Naturalization Service (INS) 
published an interim rule on October 20, 1997 (Federal Register, Vol. 
62, No. 202, pp. 54346-54356) describing the new ``Affidavit of 
Support'' (Form I-864), and two ancillary forms, the ``Contract Between 
Sponsor and Household Member'' (Form I-864A), and the ``Sponsor's 
Notice of Change of Address'' (Form I-865). INS's rule included 
procedural instructions for filling out the forms, and established 
December 19, 1997 as the effective date on which these forms would be 
required for submission to immigration and consular officers.
    The net effect of the new affidavit of support is that it is must 
be fully executed in compliance with the provisions of INA 213A in 
order for an alien (as described above) to meet the requirements of INA 
212(a)(4)(C). An affidavit of support that has been appropriately 
executed and submitted does not, however, necessarily establish that an 
alien is not within the purview of the public charge provisions of 
212(a)(4)(A). That decision remains vested with the reviewing 
immigration or consular officer, who must be satisfied that the alien 
is otherwise not likely to become a public charge upon entering the 
United States.
    Accordingly, the Department is (1) adding new regulations at 22 CFR 
40.41(b) and (c), (2) amending regulations at 22 CFR 40.41(a), (b), and 
(d) to reflect the new affidavit of support requirements, and (3), 
redesignating 22 CFR 40.41(b), (c), and (d) as 40.41(d), (e), and (f), 
respectively. In addition, the current description of the poverty line 
contained in new 40.41(f), formerly (d), is being eliminated and 
replaced with a reference to new section, INA 213A(h), which contains 
the definition of the poverty line to be used for 213A purposes. Since 
both the old and the new description refer to the same poverty line 
established by the Department of Health and Human Services, this change 
will simply make uniform all references to the poverty line for 
purposes of 212(a)(4) in accordance with the latest description. The 
new (f) is also retitled to reflect the revised language.

Interim Rule

    This rule modifies 22 CFR, Subchapter E, Subpart E to reflect 
changes made by IIRIRA. Title V, Subtitle C, of IIRIRA, which is 
implemented by this rule became effective December 19, 1997. The 
issuance of this rule as an interim rule, with provisions for post-
promulgation 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 and an effective date set under 
statutory authority.
    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.
    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.
    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 
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 40

    Aliens, Immigrants, Immigration, Nonimmigrants, Passports and 
visas.

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

[[Page 67564]]

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:


Sec. 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


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