Federal Register / Vol. 87, No. 12 / Wednesday, January 19, 2022 / Rules and Regulations 2703 

introductory text, and (c)(3); and’’ 

should read, ‘‘Adding paragraph (d).’’ 

■ 3. On page 1514, in the first column, 

under amendatory instruction number 

3, instruction ‘‘3e’’ should be deleted. 

§ 12.10 Reporting safety-related incidents 

[Corrected]. 

■ 1. On page 1514, in the third column, 

amendatory instruction number 

‘‘4(b)(5)’’ should read ‘‘4(b)(4)’’ 

[FR Doc. C1–2021–27736 Filed 1–18–22; 8:45 am] 

BILLING CODE 0099–10–P 

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. 

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 § 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, 


jspears on DSK121TN23PROD with RULES1
2704 Federal Register / Vol. 87, No. 12 / Wednesday, January 19, 2022 / Rules and Regulations 

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 

■ 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. 

■ 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: 

§ 22.1 Schedule of fees. 

* * * * * 


jspears on DSK121TN23PROD with RULES1
Federal Register / Vol. 87, No. 12 / Wednesday, January 19, 2022 / Rules and Regulations 2705 

SCHEDULE OF FEES FOR CONSULAR SERVICES

Item No. Fee 

*******

32. * * * 

(e) Certain adoptee applicants for replacement Immigrant Visas as described in 22 CFR 42.71(b)(2) ..................................... No Fee. 

(f) Certain immigrant visa applicants previously refused pursuant to Proclamation 9645 or Proclamation 9983, as described 

in 22 CFR 42.71(b)(3) ............................................................................................................................................................... No Fee. 

*******

34. * * * 

(a) Certain immigrant visa applicants previously refused solely pursuant to Proclamation 9645 or Proclamation 9983, as described in 22 CFR 42.71(b)(3) .................................................................................................................................................. No Fee. 

*******

PART 42—VISAS: DOCUMENTATION 

OF IMMIGRANTS UNDER THE 

IMMIGRATION AND NATIONALITY 

ACT, AS AMENDED 

■ 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). 

■ 4. Section 42.71 is amended by 

revising paragraph (b) to read as follows: 

§ 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. 

■ 5. Section 42.74 is amended by 

revising paragraph (a) to read as follows: 

§ 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 

DEPARTMENT OF JUSTICE 

Bureau of Prisons 

28 CFR Parts 523 and 541 

[BOP–1176P] 

RIN 1120–AB76 

FSA Time Credits 

AGENCY: Bureau of Prisons, Justice. 

ACTION: Final rule. 

SUMMARY: This rule codifies the Bureau 

of Prisons’ (Bureau or BOP) procedures 

regarding the earning and application of 

time credits as authorized by the First 

Step Act of 2018 (FSA), hereinafter 

referred to as ‘‘FSA Time Credits’’ or 

‘‘Time Credits.’’ The FSA provides that 


jspears on DSK121TN23PROD with RULES1