[Federal Register Volume 87, Number 12 (Wednesday, January 19, 2022)]
[Rules and Regulations]
[Pages 2703-2705]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-00829]


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DEPARTMENT OF STATE

22 CFR Parts 22 and 42

[Public Notice: 11526]
RIN 1400-AF37


Visas: Immigrant Visas

AGENCY: Department of State.

ACTION: Final rule.

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SUMMARY: The Department of State (Department) amends its regulation 
governing immigrant visa fees to allow for the exemption from immigrant 
visa (IV) fees for certain applicants previously denied an immigrant 
visa pursuant to certain Presidential Proclamations issued by the 
previous administration and associated technical corrections.

DATES: This final rule is effective on January 19, 2022.

FOR FURTHER INFORMATION CONTACT: Claire Kelly, Office of Visa Services, 
Bureau of Consular Affairs, Department of State, 600 19th St. NW, 
Washington, DC 20006, (202) 485-7586.

SUPPLEMENTARY INFORMATION:

I. What changes to 22 CFR 22.1, 42.71, and 42.74 does the Department 
make?

    The Department is amending 22 CFR 22.1 and 42.71 to exempt 
applicants who were denied an IV under section 212(f) of the 
Immigration and Nationality Act (INA) on or between December 8, 2017, 
and January 19, 2020, due to Presidential Proclamations 9645 and 9983 
(collectively, ``Proc. 9645/9983'') from the payment of immigrant visa 
fees. The Department is also correcting a typographical error in 22 CFR 
22.1, Item 32(e), which should refer to 22 CFR 42.71, not 22 CFR 42.74, 
and correcting the header for Sec.  42.71(b)(2) to specifically refer 
to adoptees. The Department is also correcting a formatting error in 22 
CFR 42.74(a).

II. Policy Justification

    On January 20, 2021, President Biden signed Proclamation 10141, 
``Ending Discriminatory Bans on Entry to the United States'' (Proc. 
10141), which revoked Proc. 9645/9983. Among other requirements, Proc. 
10141 directed the Department to create ``a proposal to ensure that 
individuals whose immigrant visa applications were denied on the basis 
of the suspension and restriction on entry imposed by Proclamation 9645 
or 9983 may have their applications reconsidered'' and that the 
proposal ``shall consider whether to reopen immigrant visa applications 
that were denied'' and ``whether it is necessary to charge an 
additional fee to process those visa applications.''
    An IV applicant who is the beneficiary of a valid immigration 
petition may submit another visa application after being refused and in 
most circumstances they are required to pay again the relevant 
application fees. With this final rule, the Department exempts from 
such fees only those IV applicants who are applying again after being 
refused an IV pursuant to Proc. 9645/9983, with that limitation on 
scope being justified by the President's findings articulated in Proc. 
10141, as described below. Many IV applicants denied under Proc. 9645/
9983, assuming no material change in circumstances, may now be eligible 
for a visa, and the Department is exempting this defined category of IV 
applicants from payment of IV fees if they apply again for an immigrant 
visa.
    Some applicants were initially denied IVs under the Proc. 9645/9983 
and additional refusal grounds. These applicants are not eligible for 
the fee exemption established by this final rule, unless a consular 
officer has previously determined, and informed the applicant in a visa 
denial letter, that the refusal on other grounds has been overcome and 
the only impediment to issuance of an IV on January 20, 2021, was Proc. 
9645/9983, as reflected in a denial under section 212(f) of the INA, 8 
U.S.C. 1182(f). If the other refusal grounds have not been overcome, 
the applicant will be required to pay the IV fees if they wish to apply 
again for an immigrant visa.
    This final rule also does not apply to IV applicants who were 
refused due to Proc. 9645/9983 on or after January 20, 2020, as 22 CFR 
42.81(e) provides for the reconsideration of their previously filed 
application, without an additional application fee. That regulation 
allows IV applicants to have their case reconsidered, without payment 
of an additional fee, by providing ``further evidence tending to 
overcome the ground of ineligibility on which the refusal was based'' 
within one year of the date of refusal. The Department considers Proc. 
10141, issued January 20, 2021, as the presentation of evidence 
overcoming the ineligibility, thus allowing cases refused within the 
prior year to be reconsidered under 22 CFR 42.81(e) without a new 
application fee.
    Proc. 10141 described Proc. 9645/9983 as ``just plain wrong.'' As a 
means of remedying a suspension of entry under Proc. 9645/9983 that the 
President found objectional as explained in Proc. 10141, the Department 
exempts, from payment of immigrant visa fees, applicants who were 
denied an IV on or between December 8, 2017, and January 19, 2020, 
solely due to the Proc. 9645/9983 and who submits a new application for 
an immigrant visa. Specifically, under this rule, these individuals 
would be exempt from the applicable immigrant visa application 
processing fee, as well as the affidavit of support review fee, if the 
applicant would otherwise be required to pay that fee again.

III. Regulatory Findings and Impact Statements

A. Administrative Procedure Act

    This rule is exempt from notice and comment under the 
Administrative Procedure Act (APA) because it involves a foreign 
affairs function of the United States. 5 U.S.C. 553(a)(1).
    Article II of the Constitution endows the President with certain 
foreign affairs powers, including the power to regulate the entry of 
noncitizens to the United States. See U.S. CONST. art. II; United 
States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950) (``The 
exclusion of aliens is a fundamental act of sovereignty . . . [and] is 
inherent in the executive power to control the foreign affairs of the 
nation.''); Harisiades v. Shaughnessy, 342 U.S. 580, 588-89 (1952) 
(``[A]ny policy toward aliens is vitally and intricately interwoven 
with contemporaneous policies in regard to the conduct of foreign 
relations [and] the war power . . . .''). An agency action that is 
taken as an extension of the President's Article II foreign affairs 
authority is a diplomatic function and falls within the foreign affairs 
exception (hereafter, the ``exception''). See East Bay Sanctuary 
Covenant v. Trump, 932 F.3d 742, 755 (9th Cir. 2018) (noting that 
Article II ``vests power in the President to regulate the entry of 
aliens into the United States,'' and are inherent executive powers that 
constitute a foreign affairs function (citing Knauff, 338 U.S. at 
542)). Visa functions specifically involve regulating the admission or 
exclusion of noncitizens. Therefore,

[[Page 2704]]

visa-related regulations involve executing a constitutionally-bestowed 
Executive power. See Knauff, 338 U.S. at 542. Any visa-related 
regulations then fall within the exception as an extension of the 
President's foreign affairs functions.
    An action will fall within the foreign affairs exception if it 
``clearly and directly'' involves a foreign affairs function. Capital 
Area Immigrants' Rights Coal. v. Trump, 471 F. Supp. 3d 25, 53 (D.D.C. 
2020) (``to be covered by the foreign affairs function exception, a 
rule must clearly and directly involve activities or actions 
characteristic to the conduct of international relations''). In Raoof 
v. Sullivan, the U.S. District Court for the District of Columbia found 
that the Department properly exercised the foreign affairs exception 
for the J-1 nonimmigrant visa two-year foreign residence requirement 
because ``the exchange visitor program--with its statutory mandate for 
international interaction through nonimmigrants--certainly relates to 
foreign affairs and diplomatic duties conferred upon the Secretary of 
State and the State Department.'' 315 F. Supp. 3d 34, 44 (D.D.C. 2018). 
As in Raoof, this rule reflects changes to U.S. foreign policy, 
specifically in the context of U.S. visas. In waiving certain fees for 
particular visa applicants, this rule will allow the Department to 
better facilitate immigration of foreign nationals to the United 
States, which clearly and directly relates to a foreign affairs 
function of the United States.
    Given the Department's responsibility for carrying out U.S. foreign 
policy, which includes the issuance of visas, and the Department's 
discretionary authority to collect visa fees, the Department may exempt 
categories of foreign nationals from payment of fees for an immigrant 
visa application. Fees are frequently a central discussion area in 
bilateral and multilateral consular engagements and have at times 
become a profound diplomatic irritant. What fees we do or do not charge 
a given country's citizens will directly affect the fees charged to 
Americans who wish to visit that country. The Department spends 
considerable time on this issue, and on ensuring reciprocal treatment 
for American citizens. Visa fees have a direct diplomatic effect on our 
relationship with other countries. The Secretary's exercise of a 
discretionary authority to publicly identify which categories of 
foreign immigrants are not required to pay immigrant visa application 
fees, particularly when foreign nationality is a determinant and 
reciprocal treatment at issue, clearly and directly impact foreign 
affairs functions of the United States and implicates matters of 
diplomacy directly. Consequently, in accordance with 5 U.S.C. 
553(a)(1), is exempt from the notice and comment requirement of 5 
U.S.C. 553.

B. Regulatory Flexibility Act/Executive Order 13272 (Small Business)

    As this rulemaking is not subject to notice-and-comment 
requirements, the Regulatory Flexibility Act does not apply.

C. Unfunded Mandates Reform Act of 1995

    Section 202 of the Unfunded Mandates Reform Act of 1995 (UFMA), 
Public Law 104-4, 109 Stat. 48, 2 U.S.C. 1532, generally requires 
agencies to prepare a statement before proposing any rule that may 
result in an annual expenditure of $100 million or more by State, 
local, or tribal governments, or by the private section. This rule will 
not result in any such expenditure, nor will it significantly or 
uniquely affect small governments.

D. Executive Orders 12866 (Regulatory Planning and Review) and 13563 
(Improving Regulation and Regulatory Review)

    The Office of Management and Budget (OMB) has designated this rule 
a ``significant regulatory action,'' although not economically 
significant, under section 3(f) of Executive Order 12866. Accordingly, 
the rule has been reviewed by OMB.
    Executive Orders 12866 and 13563 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). The 
Department has reviewed this proposal to ensure consistency with those 
requirements.
    The Department has also considered this rule in light of Executive 
Order 13563 and affirms that this rule is consistent with the guidance 
therein.

E. Executive Orders 12372 and 13132 (Federalism)

    This rule will not have substantial direct effects on the States, 
on the relationship between the National Government and the States, or 
the distribution of power and responsibilities among the various levels 
of government. Nor will the rule have federalism implications 
warranting the application of Executive Orders 12372 and 13132.

F. Executive Order 12988 (Civil Justice Reform)

    The Department has reviewed the rule in light of sections 3(a) and 
3(b)(2) of Executive Order 12988 to eliminate ambiguity, minimize 
litigation, establish clear legal standards, and reduce burden.

G. Executive Order 13175 (Consultation and Coordination With Indian 
Tribal Governments)

    The Department has determined that this rule will not have tribal 
implications, will not impose substantial direct compliance costs on 
Indian tribal governments, and will not pre-empt tribal law. 
Accordingly, the requirements of Executive Order 13175 do not apply to 
this rule.

H. Paperwork Reduction Act

    This rule does not impose any new reporting or recordkeeping 
requirements subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 
35.

I. Congressional Review Act

    This final rule is not a major rule as defined by the Congressional 
Review Act, 5 U.S.C. 801 et seq.

List of Subjects in 22 CFR Parts 22 and 42

    Consular services, Fees, Immigration, Passports and visas.

    Accordingly, for the reasons stated in the preamble, and under the 
authority 8 U.S.C. 1104 and 22 U.S.C. 2651(a), 22 CFR parts 22 and 42 
are amended as follows:

PART 22--SCHEDULE OF FEES FOR CONSULAR SERVICES--DEPARTMENT OF 
STATE AND FOREIGN SERVICE

0
1. The authority citation for part 22 continues to read as follows:

    Authority:  8 U.S.C. 1101 note, 1153 note, 1157 note, 1183a 
note, 1184(c)(12), 1201(c), 1351, 1351 note, 1713, 1714, 1714 note; 
10 U.S.C. 2602(c); 22 U.S.C. 214, 214 note, 1475e, 2504(h), 2651a, 
4206, 4215, 4219, 6551; 31 U.S.C. 9701; E.O. 10718, 22 FR 4632, 3 
CFR, 1954-1958 Comp., p. 382; E.O. 11295, 31 FR 10603, 3 CFR, 1966-
1970 Comp., p. 570.


0
2. Section 22.1 is amended in the table by revising Item 32(e) and 
adding Items 32(f) and 34(a) to read as follows:


Sec.  22.1  Schedule of fees.

* * * * *

[[Page 2705]]



                 Schedule of Fees for Consular Services
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                        Item No.                                Fee
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                              * * * * * * *
32. * * *
    (e) Certain adoptee applicants for replacement               No Fee.
     Immigrant Visas as described in 22 CFR 42.71(b)(2).
    (f) Certain immigrant visa applicants previously             No Fee.
     refused pursuant to Proclamation 9645 or
     Proclamation 9983, as described in 22 CFR
     42.71(b)(3)........................................
 
                              * * * * * * *
34. * * *
    (a) Certain immigrant visa applicants previously             No Fee.
     refused solely pursuant to Proclamation 9645 or
     Proclamation 9983, as described in 22 CFR
     42.71(b)(3)........................................
 
                              * * * * * * *
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PART 42--VISAS: DOCUMENTATION OF IMMIGRANTS UNDER THE IMMIGRATION 
AND NATIONALITY ACT, AS AMENDED

0
3. The authority citation for part 42 continues to read as follows:

    Authority:  8 U.S.C. 1104 and 1182; Pub. L. 105-277, 112 Stat. 
2681; Pub. L. 108-449, 118 Stat. 3469; The Convention on Protection 
of Children and Co-operation in Respect of Intercountry Adoption 
(done at the Hague, May 29, 1993), S. Treaty Doc. 105-51 (1998), 
1870 U.N.T.S. 167 (Reg. No. 31922 (1993)); 42 U.S.C. 14901-14954 
(Pub. L. 106-279, 114 Stat. 825); 8 U.S.C. 1101 (Pub. L. 111-287, 
124 Stat. 3058); 8 U.S.C. 1154 (Pub. L. 109-162, 119 Stat. 2960); 8 
U.S.C. 1201 (Pub. L. 114-70, 129 Stat. 561).


0
4. Section 42.71 is amended by revising paragraph (b) to read as 
follows:


Sec.  42.71  Authority to issue visas; visa fees.

* * * * *
    (b) Immigrant visa fees--(1) Payment of fees. The Secretary of 
State prescribes a fee for the processing of immigrant visa 
applications. Except as provided in paragraphs (b)(2) and (3) of this 
section, an individual registered for immigrant visa processing at a 
post designated for this purpose by the Deputy Assistant Secretary for 
Visa Services must pay the fee upon being notified that a visa is 
expected to become available in the near future, and upon being 
requested to obtain the supporting documentation needed to apply 
formally for a visa, in accordance with instructions received with such 
notification. The fee must be paid before an applicant at a post so 
designated will receive an appointment to appear and make application 
before a consular officer. Applicants at a post not yet so designated 
will pay the fee immediately prior to formal application for a visa. A 
fee collected for the processing of an immigrant visa application is 
refundable only if the principal officer of a post or the officer in 
charge of a consular section determines that the application was not 
adjudicated as a result of action by the U.S. Government over which the 
alien had no control and for which the alien was not responsible, which 
precluded the applicant from benefitting from the processing, or as 
provided in paragraph (b)(2) of this section.
    (2) Waiver or refund of fees for replacement immigrant visas for 
adoptees. The consular officer shall waive the application processing 
fee for a replacement immigrant visa or, upon request, refund such a 
fee where already paid, if the consular officer is satisfied that the 
alien, the alien's parent(s), or the alien's representative has 
established that:
    (i) The prior immigrant visa was issued on or after March 27, 2013, 
to an alien who has been lawfully adopted, or who is coming to the 
United States to be adopted, by a United States citizen;
    (ii) The alien was unable to use the original immigrant visa during 
the period of its validity as a direct result of extraordinary 
circumstances, including the denial of an exit permit; and
    (iii) The inability to use the visa was attributable to factors 
beyond the control of the adopting parent or parents and of the alien.
    (3) Exemption from fees for immigrant visa applicants previously 
refused solely pursuant to Proclamation 9645 or Proclamation 9983. An 
immigrant visa applicant shall be exempt from the application 
processing fee and the affidavit of support review fee, if the 
applicant was previously denied an immigrant visa on or between 
December 8, 2017, and January 19, 2020; the sole ground of 
ineligibility was based on Proclamation 9645 or 9983; and the applicant 
is applying again for an immigrant visa. This paragraph (b)(3) provides 
only for a one-time exemption of the applicable fees per applicant.

0
5. Section 42.74 is amended by revising paragraph (a) to read as 
follows:


Sec.  42.74   Issuance of new, replacement, or duplicate visas.

    (a) New immigrant visa for a special immigrant under INA 
101(a)(27)(A) and (B). The consular officer may issue a new immigrant 
visa to a qualified alien entitled to status under INA 101(a)(27)(A) or 
(B), provided that:
    (1) The alien establishes that the original visa has been lost, 
mutilated, or has expired; or that the alien will be unable to use it 
during the period of its validity; and
    (2) The alien pays anew the application processing fees prescribed 
in the Schedule of Fees (22 CFR 22.1); and
    (3) The consular officer ascertains whether the original issuing 
office knows of any reason why a new visa should not be issued.
* * * * *

Kevin E. Bryant,
Deputy Director, Office of Directives Management, U.S. Department of 
State.
[FR Doc. 2022-00829 Filed 1-18-22; 8:45 am]
BILLING CODE 4710-06-P