[Federal Register Volume 63, Number 140 (Wednesday, July 22, 1998)]
[Rules and Regulations]
[Pages 39217-39218]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-19542]


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DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 211

[INS No. 1920-98]
RIN 1115-AE47


Waiver of Inadmissibility for Certain Applicants for Admission as 
Permanent Residents

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Final rule.

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SUMMARY: This rule makes a technical correction to the Immigration and 
Naturalization Service (Service) regulations that govern the 
documentary requirements for immigrants and corresponding waivers. The 
regulations at 8 CFR 211.1(b)(3) permit District Directors, in 
individual cases, to waive the inadmissibility of aliens seeking 
admission for permanent residence or as returning residents who fail to 
present the appropriate travel documents. This rule will clarify that 
aliens granted waivers pursuant to 8 CFR 211.1(b)(3) are not exempt 
from the visa requirement, and that carriers remain liable for fines 
imposed under section 273(a) of the Act for bring these aliens to the 
United States, even if the District Director grants a waiver of 
inadmissibility to the alien at the time of admission into the United 
States as a returning resident. This change is necessary to conform the 
language of the regulations with the statutory authority which exists 
to impose a fine when an alien is transported to the United States 
without the proper documentation.

DATES: This rule is effective July 22, 1998.

FOR FURTHER INFORMATION CONTACT: Una Brien, Immigration and 
Naturalization Service, 1400 Wilson Blvd., Suite 210, Arlington, 
Virginia 22209, telephone (202) 305-7018.

SUPPLEMENTARY INFORMATION: Section 273 of the Immigration and 
Nationality Act (the Act) imposes a fine on any carrier who brings to 
the United States any alien who lacks the passport or visa required by 
law. Section 211(b) of the Act permits the Attorney General to waive 
the inadmissibility of aliens seeking admission as returning residents 
who lack the necessary travel documents. Under the jurisprudence 
developed by the Board of Immigration Appeals (BIA), whether granting a 
waiver of inadmissibility relieves the carrier of liability for a fine 
depends on how the regulation governing the exercise of this waiver 
authority is written. See e.g., Matter of ``Flight SR-4'', 10 I&N Dec. 
197 (BIA 1963). The BIA has treated regulations that provide for a 
``blanket'' waiver as also relieving the carrier of fine liability. The 
carrier remains liable, however, if the regulations provide for waivers 
only in individual cases. See Matter of Plane ``CUT-604'', 7 I&N Dec. 
701, 702 (BIA 1958) citing Matter of PAA Plane ``Flight 204'', 6 I&N 
Dec. 810 (BIA 1955).
    On March 22, 1996, the Service published a final rule in the 
Federal Register at 61 FR 11717, which amended the regulations 
governing granting waivers of inadmissibility to nonimmigrants. The 
purpose of the amendment was to ensure that when the Service grants a 
waiver of inadmissibility, the carrier is not relieved from fine 
liability. On September 30, 1996, Congress passed the Illegal 
Immigration Reform and Immigrant Responsibility Act of 1996,

[[Page 39218]]

Pub. L. 104-208, which required the Service to amend major portions of 
its regulations. On January 3, 1997, the Service published a proposed 
rule in the Federal Register, at 62 FR 444, and a subsequent interim 
rule on March 6, 1997, at 62 FR 10312, implementing the provisions of 
Pub. L. 104-208.
    In addition, the proposed and interim rules also restructured major 
portions of 8 CFR, including part 211 to make it easier to understand. 
However, as contained in the proposed and interim rule, the exceptions 
to the visa documentary requirements referenced in Section 211.1(a) 
should have been limited to those circumstances listed in ``paragraph 
(b)(1)'' and not all of ``paragraph (b).'' The classes of aliens listed 
in section 211.1(b)(1), e.g., a child born after the issuance of an 
immigrant visa to the child's accompanying parent or a child born 
during the temporary visit abroad of a mother who is a lawful permanent 
resident or a national of the United States, are identical to those 
specifically excepted from the visa documentary requirement prior to 
the restructuring of the regulation. See 8 CFR 211.1(a) (1997). The 
erroneous reference to ``paragraph (b)'' may mislead some readers into 
thinking that returning lawful permanent residents who apply for and 
are granted a waiver of the visa requirement on a case by case basis, 
i.e., the class of aliens described in 8 CFR 211.1(b)(3), are exempt 
from presenting entry documents and, by extension, that a carrier which 
transports such as alien to the United States no longer incurs 
liability under section 273(b) of the Act. This ambiguity in the 
meaning of the interim rule was the result of an administrative 
oversight rather than a deliberate policy decision.
    Accordingly, this final rule amends Sec. 211.1(a) to revise the 
reference to ``paragraph (b)'' to read ``paragraph (b)(1)''. This is 
intended to clarify, once again, that a waiver of inadmissibility does 
not relieve the carrier of fine liability for carrying an alien 
passenger without the required documents.

Good Cause Exception

    The amendment made by this rule corrects an inadvertent error which 
was included in a proposed rule published by the Service in the Federal 
Register on January 3, 1997, at 62 FR 444, and in the subsequent 
interim rule published in the Federal Register on March 6, 1997, at 62 
FR 10312. As stated in the supplemental portion of the proposed rule, 
62 FR 452, the Service was engaged in a comprehensive review of all of 
its regulations in an effort to reduce them and make them more readable 
and understandable. It was the Service's intention to restructure 8 CFR 
part 211 to make it easier to comprehend. It was never the Service's 
intention to undermine the Service's ability to impose fines for 
violations under section 273 of the Act. Although the Service intended 
to correct this technical error when a final rule was published, the 
Service believes that good cause exists to issue a separate final rule 
to amend Sec. 211.1(a) to correct the error immediately. This rule has 
been published as a proposed and interim rule as part of a larger rule 
with opportunity for public comment, therefore, it is unnecessary to 
issue it now as a proposed rule.

Regulatory Flexibility Act

    In accordance with the Regulatory Flexibility Act (5 U.S.C. 
605(b)), the Commissioner has reviewed this regulation, and by 
approving it, certifies that the rule will not have a significant 
economic impact on a substantial number of small entities, as defined 
by 5 U.S.C. 601(6). This rule merely removes any ambiguity between the 
current regulations and section 273 of the Act by correcting an 
inadvertent error in its regulations that is addressed in the 
supplemental portion of this final rule.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local, and 
tribal governments, or by the private sector, of $100 million or more, 
in the aggregate, in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, the Commissioner 
determined that no actions were necessary under the provisions of the 
Unfunded Mandates Reform Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 804 of the 
Small Business Regulatory Enforcement Fairness Act of 1996. This rule 
will not result in an annual effect on the economy of $100 million or 
more; a major increase in costs or prices; or significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or the ability of United States-based companies to compete 
with foreign-based companies in domestic and export markets.

Executive Order 12866

    This rule is not considered by the Department of Justice, 
Immigration and Naturalization Service, to be a ``significant 
regulatory action'' under Executive Order 12866, section 3(f), 
Regulatory Planning and Review, and the Office of Management and Budget 
has waived its review process under section 6(a)(3)(A).

Executive Order 12612

    The rule adopted herein will not have substantial direct effects on 
the States, on the relationship between the Federal Government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with Executive 
Order 12612, it is determined that this rule does not have sufficient 
federalism implications to warrant the preparation of a Federalism 
Assessment.

Executive Order 12988 Civil Justice Reform

    This final rule meets the applicable standards set forth in 
sections (3)(a) and 3(b)(2) of E.O. 12988.

List of Subjects in 8 CFR Part 211

    Aliens, Immigration, Passports and visas, Reporting and 
recordkeeping requirements.
    Accordingly, part 211 of chapter I of title 8 of the Code of 
Federal Regulations is amended as follows:

PART 211--DOCUMENTARY REQUIREMENTS: IMMIGRANTS; WAIVERS

    1. The authority citation for part 211 continues to read as 
follows:

    Authority: 8 U.S.C. 1101, 1103, 1181, 1182, 1203, 1225, 1257; 8 
CFR part 2.


Sec. 211.1  [Amended]

    2. In Sec. 211.1 paragraph (a) introductory text is amended by 
revising the reference to ``paragraph (b)'' to read ``paragraph 
(b)(1)''.

    Dated: May 26, 1998.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 98-19542 Filed 7-21-98; 8:45 am]
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