99076 Federal Register / Vol. 89, No. 237 / Tuesday, December 10, 2024 / Rules and Regulations 

but to hold down the fort, conduct routine 

law enforcement, and provide for an orderly 

transition to the Trump Administration. I 

will vote against all new rules not required 

by statute, and any enforcement action that 

advances an unprecedented theory of 

liability until that transition is complete. 

[FR Doc. 2024–28399 Filed 12–9–24; 8:45 am] 

BILLING CODE 6750–01–P 

DEPARTMENT OF STATE 

22 CFR Part 42 

[Public Notice: 12446] 

RIN 1400–AF82 

Visas: Special Immigrant Visas—U.S. 

Government Employee Special 

Immigrant Visas for Service Abroad 

AGENCY: Department of State. 

ACTION: Final rule. 

SUMMARY: This final rule makes updates 

to reflect a statutory change to the class 

of individuals who may qualify for 

Special Immigrant Visas (SIVs). 

DATES: This final rule is effective 

December 10, 2024. 

FOR FURTHER INFORMATION CONTACT: Jami 

Thompson, Senior Regulatory 

Coordinator, U.S. Department of State, 

Bureau of Consular Affairs, Visa 

Services, 600 19th Street NW, 

Washington, DC 20522, (202) 485–7586, 

VisaRegs@state.gov. 

SUPPLEMENTARY INFORMATION: 

I. Special Immigrant Visas for Certain 

Employees or Former Employees of the 

United States Abroad, and for the 

Surviving Spouses or Children of 

Certain Deceased Employees of the U.S. 

Government Abroad 

A. Legal Authority 

Section 203(b)(4) of the Immigration 

and Nationality Act (INA), as amended 

8 U.S.C. 1153(b)(4), generally provides 

that visas may be issued to qualified 

special immigrants described in INA 

section 101(a)(27). Among the 

individuals considered ‘‘special 

immigrants’’ as defined in this 

provision, INA section 101(a)(27)(D), 8 

U.S.C. 1101(a)(27)(D), defines ‘‘special 

immigrant’’ to include employees, or 

honorably retired former employees, of 

the U.S. Government abroad, or of the 

American Institute in Taiwan, who have 

performed faithful service for a total of 

fifteen years or more, in addition to 

their accompanying spouse and 

children, and who have been 

recommended and approved for such 

status in accordance with enumerated 

criteria. 

Section 403(a) of the Emergency 

Security Supplemental Appropriations 

Act, 2021 (‘‘ESSAA’’), Public Law 117– 

31, 135 Stat. 309, 318, amended the 

definition of a special immigrant at INA 

section 101(a)(27)(D) to include a new 

subclause (ii). The new subclause 

includes in the definition of ‘‘special 

immigrant’’ the surviving spouse or 

child of an employee of the United 

States Government abroad: Provided, 

[t]hat the employee performed faithful 

service for a total of not less than 15 

years or was killed in the line of duty.’’ 

Under this provision, the qualifying 

surviving spouse or child of a U.S. 

Government employee is a principal 

applicant for special immigrant status, 

and consequently, their current spouse 

and minor child(ren) are entitled to SIVs 

as derivatives under INA section 203(d), 

8 U.S.C. 1153(d), if accompanying or 

following to join the qualifying 

surviving spouse or parent. Pursuant to 

section 403(d) of the ESSAA, these 

changes are effective June 30, 2021, and 

have retroactive effect. 

In addition to the qualifications for 

this group of ‘‘special immigrants,’’ INA 

section 204(a)(1)(G)(ii) governs the 

process through which an individual 

claiming status as a special immigrant 

under INA section 101(a)(27)(D) must 

file a petition with the Department of 

State, requiring that they first be 

recommended and approved for such 

status. 

B. Processing for Special Immigrants 

Under INA Section 101(a)(27)(D) 

Under INA sections 204(a)(1)(G)(ii) 

and 101(a)(27)(D)(i), acquisition of 

special immigrant status under INA 

section 101(a)(27)(D) requires multiple 

sequential steps. First, the principal 

officer of the U.S. embassy or consulate 

with jurisdiction over where the 

individual was employed must have 

recommended the granting of special 

immigrant status in exceptional 

circumstances, and the Secretary of 

State or appropriate designee must have 

approved the recommendation and 

found that it is in the national interest 

to grant such status. Second, under INA 

section 204(a)(1)(G)(ii), only after the 

approval of the recommendation, the 

applicant may submit a Form DS–1884, 

Petition to Classify Special Immigrant 

Under INA 203(b)(4) as an Employee or 

Former Employee of the U.S. 

Government Abroad, or the Surviving 

Spouse or Child of an Employee of the 

U.S. Government Abroad, to a consular 

officer at a foreign service post. Under 

Department regulations at 22 CFR 

42.34(b)(2), the date the applicant’s 

properly completed DS–1884 is 

accepted becomes the applicant’s 

priority date. Those same regulations at 

22 CFR 42.34(b)(4) provide that a 

petition from a qualifying individual is 

valid for six months from the date of 

approval or the date an immigrant visa 

number becomes available, whichever is 

later. 

C. What is the impact of the ESSAA? 

Prior to passage of the ESSAA, if the 

employee were to die before entering 

the United States using their immigrant 

visa, the surviving spouse or child 

would be ineligible for immigrant 

status. With the passage of the ESSAA, 

a surviving spouse and surviving 

child(ren), as a principal applicant, are 

eligible to seek qualification as a special 

immigrant. Additionally, in situations 

where the employee did not pursue 

special immigrant status prior to the 

employee’s death, their surviving 

spouse and/or child may now qualify to 

be approved for status. These changes 

apply retroactively, meaning that the 

surviving spouse or child of an 

employee who died prior to the effective 

date of the ESSAA may also seek to 

qualify. To be a surviving spouse, the 

spousal relationship must have existed 

at the time of the deceased employee’s 

death. To be a surviving child, the adult 

son or daughter of the deceased 

employee must have met the definition 

of ‘‘child’’ under INA section 101(b)(1) 

on the date of the employee’s death. 

II. Changes the Department Is Making 

A. 22 CFR 42.11 

This rule makes updates to the 

Department’s regulations at 22 CFR 

42.11 that list the symbols of the current 

immigrant visa classifications to 

conform with the new classifications 

added by the ESSAA. Specifically, 

under the ‘‘Employment 4th Preference 

(Certain Special Immigrants)’’ header, 

the Department is adding: The ‘‘SS1’’ 

symbol that will be used for issuance of 

SIVs to the surviving spouse or child of 

a U.S. Government employee; the ‘‘SS2’’ 

symbol that will be used for issuance of 

an SIV to the current spouse of an SS1 

who qualifies as a derivative under INA 

203(d); and the ‘‘SS3’’ symbol that will 

be used for issuance of an SIV to the 

minor child(ren) of an SS1 who meet(s) 

the definition of ‘‘child’’ under INA 

101(b)(1) and 203(h), and qualify(ies) as 

a derivative under INA 203(d). 

B. 22 CFR 42.34 

This rule makes changes to 

Department regulations at 22 CFR 42.34 

to conform with the expanded 

definition of ‘‘special immigrant’’ under 

the ESSAA. For the reasons explained 

below, the Department believes these (or 


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1See 88 FR 45072 (July 14, 2023). 

equivalent) changes are necessary to 

implement the best reading of the 

ESSAA. The changes include the 

explanation of the classification of a 

surviving spouse or child of an 

employee of the United States 

Government abroad who was killed in 

the line of duty, or who performed 

faithful service for at least fifteen years 

before their death. 

As summarized above, the ESSAA 

added a new subsection (ii) to INA 

101(a)(27)(D) and amended INA 

101(a)(27)(D) to specify that a ‘‘special 

immigrant’’ includes an individual 

described in clause (D)(i) ‘‘or’’ clause 

(D)(ii). The ESSAA did not amend INA 

204(a)(1)(G)(ii), which governs the 

process through which an individual 

petitions for status ‘‘as a special 

immigrant under INA 101(a)(27)(D).’’ 

Consequently, as this provision was not 

amended to distinguish the petition 

process for special immigrants 

described in INA 101(a)(27)(D)(i) or INA 

101(a)(27)(D)(ii), INA 204(a)(1)(G)(ii) 

continues to govern the petition process 

for both subcategories of ‘‘special 

immigrants’’ described in section 

101(a)(27)(D), providing that applicants 

seeking status under either subcategory 

‘‘may file a petition . . . only after 

notification by the Secretary of State 

that such status has been recommended 

and approved pursuant to such 

section.’’ Although INA 101(a)(27)(D)(ii) 

as amended does not expressly 

reference a framework for 

recommendation and approval, INA 

101(a)(27)(D)(i) establishes the 

standards for a recommendation and 

approval process, including that the 

recommendation of an individual for 

special immigrant status be made in 

‘‘exceptional circumstances’’ and the 

approval be ‘‘in the national interest,’’ 

as well as identifies officers vested with 

authority for those respective functions. 

Incorporating into INA 101(a)(27)(D)(ii) 

the standards and process for 

recommendation and approval 

expressly provided by Congress in INA 

101(a)(27)(D)(i) reflects the best reading 

of the statutory framework as amended 

by ensuring consistency with the 

companion provision in INA 

204(a)(1)(G)(ii) requiring 

recommendation and approval of such 

cases and ensuring the consistent 

application of the longstanding 

framework for the granting of special 

immigrant visas to U.S. Government 

employees. 

To address potential inconsistencies 

in how this change would be 

implemented using the existing 

definition of ‘‘exceptional 

circumstances’’ at 22 CFR 42.34(c)(7), 

this rule explains the circumstances in 

which a surviving spouse or child 

would be recommended for special 

immigrant status, based on the criteria 

described in INA section 

101(a)(27)(D)(ii). In addition to 

qualifying employees’ deaths that 

occurred in the line of duty, these 

include when the deceased employee 

performed at least 15 years of faithful 

service for the U.S. Government and 

either would have qualified for special 

immigrant status before dying or was 

employed by the U.S. Government as of 

the date of their death or in the 

immediately preceding five-year period. 

These parameters will encompass those 

family members of deceased employees 

who, but for their death following at 

least 15 years of faithful service, were 

likely to have soon qualified for special 

immigrant status by accumulating 20 

years of faithful service (where 20 years 

is a strong indicator of exceptional 

circumstances under 22 CFR 

42.34(c)(7)(ii)(E)). This standard 

encompasses those who were employed 

by the U.S. Government in the period 

immediately preceding their death, as 

the Department anticipates that in some 

cases, an employee may have ceased 

employment by the U.S. Government 

with the intention of returning, but for 

circumstances out of their control. For 

example, an employee who dies 

following a serious illness may have 

ceased or temporarily left their 

employment for a period to combat their 

illness. Consequently, to provide clarity 

to the public and support consistent 

application, the rule establishes a 

rebuttable presumption that a death 

occurring more than five years after 

cessation of employment is not related 

to the cessation of their employment for 

purposes of their surviving spouse or 

child qualifying for special immigrant 

status. 

The Department believes this fiveyear presumption will account for the 

gravity and severity of the 

circumstances surrounding cessation of 

employment, and the likelihood that a 

previously employed individual would 

have returned to work to complete 20 

years of service, if they were able to do 

so. This presumption is rebuttable and 

will require case-specific consideration 

of those individuals whose 

circumstances fall outside the five-year 

presumption and who wish to provide 

evidence to establish their 

qualifications. Surviving spouses and 

children of employees who died for 

reasons unrelated to cessation of 

employment are not precluded from 

qualifying as special immigrants, 

provided they can demonstrate that the 

employee demonstrated at least one 

form of ‘‘exceptional circumstances’’ 

while still employed. The changes also 

highlight that the processes to qualify 

for eligibility are the same for a 

surviving spouse or child as they are for 

employees. These changes make 

necessary amendments to 22 CFR 42.34 

to provide for the issuance of SIVs to 

qualified surviving spouses and 

children of U.S. Government employees, 

and to reflect the amended citations in 

INA section 101(a)(27)(D) under the 

ESSAA. 

This rule also makes corrections 

throughout 22 CFR 42.34 to replace the 

term ‘‘alien’’ with the term ‘‘applicant’’ 

or ‘‘employee,’’ as appropriate. This 

change is consistent with current 

Department practice.1

Finally, this rule also amends the 

certification, required as part of the 

principal officer’s recommendation, that 

the individual being recommended is 

prepared to pursue an immigrant visa 

application ‘‘within one year of the 

Department’s notification to the post of 

approval of special immigrant status.’’ 

As applicants in numerically limited 

immigrant visa categories, including 

INA section 203(b)(4), may not pursue 

an immigrant visa application until 

such time that a visa number becomes 

available in that category, this 

requirement has been changed to reflect 

that the recommended individual must 

be prepared to pursue their application 

‘‘within one year of the Department’s 

notification to the post of approval of 

special immigrant status, or of an 

immigrant visa becoming available, 

whichever is later.’’ 

Regulatory Findings 

A. Administrative Procedure Act 

This rule is exempted from the notice 

and comment and delayed effective date 

rulemaking procedures set forth in 5 

U.S.C. 553 because the rule involves a 

foreign affairs function. 5 U.S.C. 

553(a)(1). This exemption applies when 

the rule’s subject matter ‘‘is clearly and 

directly involved in a foreign affairs 

function.’’ Mast Indus. v. Regan, 596 F. 

Supp. 1567, 1582 (C.I.T. 1984) 

(quotation marks omitted). In addition, 

although the text of the APA does not 

require an agency invoking this 

exemption to show that rulemaking 

with public notice and comment would 

result in ‘‘definitely undesirable 

international consequences,’’ some 

courts have required such a showing. 

See, e.g., Yassini v. Crosland, 618 F.2d 

1356, 1360 n.4 (9th Cir. 1980). This rule 

satisfies both standards. 


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99078 Federal Register / Vol. 89, No. 237 / Tuesday, December 10, 2024 / Rules and Regulations 

This rule extends the authority to 

grant special immigrant status to the 

surviving spouse or child of a U.S. 

Government employee who performed 

faithful service for at least fifteen years 

or was killed in the line of duty. As with 

the availability of special immigrant 

status to qualifying locally employed 

staff, eligibility for employees’ surviving 

spouses and children encourages 

employees to remain in their jobs and to 

provide long-term, institutional memory 

to U.S. Government agencies abroad. 

This is particularly essential in 

countries where local staff members and 

their families face retribution by the 

host government, making it even more 

challenging to recruit and retain a 

locally employed workforce. For this 

reason, extending eligibility to the 

employee’s surviving spouse and 

children critically impacts the 

willingness of foreign nationals to 

become, and remain, employees of the 

U.S. Government in overseas posts, and 

hence directly impacts the effectiveness 

of U.S. diplomatic efforts in those 

countries. 

The Department’s establishment of 

criteria for surviving spouses and 

child(ren) to qualify for special 

immigrant status under ESSAA clearly 

and directly relates to U.S. foreign 

affairs, because the criteria itself is 

critical for the U.S. Government to 

recruit and retain loyal, valuable local 

staff outside the United States, without 

whom the Department could not fulfill 

its diplomatic functions overseas. The 

Department alone employs 

approximately 50,000 local staff at over 

200 Foreign Service posts overseas. 

Expanded qualifications for surviving 

spouses and child(ren) is critical to 

recruitment, retention, and morale of 

these locally employed staff who help 

the Department carry out its foreign 

affairs functions overseas. For example, 

following the 2013 death of Mustafa 

Akarsu, a member of the local guard 

force for U.S. Embassy Ankara for 22 

years, when he confronted a suicide 

bomber outside the Embassy, 

Department employee organizations 

including the American Foreign Service 

Association, advocated for passage of 

legislation eventually enacted in ESSAA 

to provide SIVs to the surviving spouses 

and children of U.S. Government 

employees killed in the line of duty. 

Consequently, implementation of these 

standards for surviving family members 

clearly and directly involves a U.S. 

foreign affairs function. 

Finally, the Department considers that 

providing the opportunity for public 

notice and comment would provide 

‘‘definitely undesirable international 

consequences,’’ in that conducting and 

resolving a public debate regarding the 

safety of surviving spouses and children 

of U.S. Government employees killed 

abroad would risk impairing U.S. 

relations with other countries. See, e.g., 

Rajah v. Mukasey, 544 F.3d 427, 437 (2d 

Cir. 2008). The loss of United States 

local employees in the line of duty has 

previously had the effect of straining 

bilateral relations, and has the 

continued potential to do so, 

particularly when such losses involve 

local foreign authorities or other parties 

over which the host country exercises 

control. This may be even more so in 

countries with which the United States 

already has sensitive or strained 

relations, which may oppose the 

availability of immigrant visas to the 

surviving spouses and children of such 

staff, who are usually nationals of the 

host country. Accordingly, the 

promulgation of standards for approval 

under the Secretary of State’s authority 

in INA 101(a)(27)(D) involves an 

inherently foreign affairs function of the 

Department of State. 

B. Regulatory Flexibility Act/Executive 

Order 13272: Small Business 

As this final rule is exempt from 

notice and comment rulemaking under 

5 U.S.C. 553(a)(1), it is exempt from the 

regulatory flexibility analysis 

requirements set forth by the Regulatory 

Flexibility Act (5 U.S.C. 601 et seq.). 

Nonetheless, as this action only directly 

impacts visa applicants, the Department 

certifies that this rule will not have a 

significant economic impact on a 

substantial number of small U.S. 

entities. 

C. Congressional Review Act of 1996 

This rule is not a major rule as 

defined in 5 U.S.C. 804. 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 

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 import markets. 

D. Executive Orders 12866 (Regulatory 

Planning and Review), 13563 

(Improving Regulation and Regulatory 

Review), and 14094 (Modernizing 

Regulatory Review) 

This rule has been drafted in 

accordance with the principles of 

Executive Orders 12866 (as amended by 

Executive Order 14094) and 13563. The 

Department has submitted this rule to 

OIRA for review and it has been deemed 

a significant regulatory action. 

E. Executive Order 12988: Civil Justice 

Reform 

The Department of State has reviewed 

the rule considering sections 3(a) and 

3(b)(2) of Executive Order 12988 to 

eliminate ambiguity, minimize 

litigation, establish clear legal 

standards, and reduce burdens. 

F. Executive Order 13175—Consultation 

and Coordination With Indian Tribal 

Governments 

The Department of State has 

determined that this rulemaking 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 

Section 5 of Executive Order 13175 do 

not apply to this rulemaking. 

G. Paperwork Reduction Act 

This rule does not impose any new 

reporting or record-keeping 

requirements subject to the Paperwork 

Reduction Act (PRA), 44 U.S.C. Chapter 

35. The Form DS–1884, Petition to 

Classify Special Immigrant under INA 

203(b)(4) as an Employee or Former 

Employee of the U.S. Government 

Abroad, is approved under the PRA 

(OMB Control No. 1405–0082). 

H. Other 

The Department has also considered 

the Unfunded Mandates Reform Act of 

1995 and Executive Orders 12372 and 

13132 and affirms this rule is consistent 

with the applicable mandates or 

guidance therein. 

List of Subjects in 22 CFR Part 42 

Administrative practice and 

procedure, Aliens, Passports and visas. 

Accordingly, for the reasons set forth 

in the preamble, 22 CFR part 42 is 

amended as follows: 

PART 42—VISAS: DOCUMENTATION 

OF IMMIGRANTS UNDER THE 

IMMIGRATION AND NATIONALITY 

ACT, AS AMENDED 

■ 1. 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. 117–31, 135 

Stat. 309); 8 U.S.C. 1154 (Pub. L. 109–162, 

119 Stat. 2960); 8 U.S.C. 1201 (Pub. L. 114– 

70, 129 Stat. 561). 

■ 2. Section 42.11 is amended in table 

1 to § 42.11 under the undesignated 


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center heading ‘‘Employment 4th 

Preference (Certain Special 

Immigrants)’’ by: 

■ a. Revising the entries for SE1, SE2, 

SE3, and SS1; and 

■ b. Adding entries for SS2 and SS3 in 

alphanumeric order. 

The revisions and additions read as 

follows: 

§ 42.11 Classification symbols. 

* * * * * 

TABLE 1 TO § 42.11 

Symbol Class Section of Law 

*******

Employment 4th Preference (Certain Special Immigrants) 

*******

SE1 ................... Certain Employee or Former Employee of the U.S. Government Abroad .. INA 101(a)(27)(D)(i) & INA 203(b)(4). 

SE2 ................... Spouse of SE1 ............................................................................................. INA 101(a)(27)(D)(i) & INA 203(b)(4). 

SE3 ................... Child of SE1 ................................................................................................. INA 101(a)(27)(D)(i) & INA 203(b)(4). 

*******

SS1 ................... Surviving Spouse or Child of an Employee of the United States Government Abroad.INA 101(a)(27)(D)(ii) & INA 203(b)(4). 

SS2 ................... Current Spouse of SS1 ................................................................................ INA 101(a)(27)(D)(ii), INA 203(b)(4) & INA 

203(d). 

SS3 ................... Child of SS1 (Excludes Surviving Child of an Employee of the United 

States Government Abroad), provided the child meets the definition of 

101(b)(1) of the INA.

INA 101(a)(27)(D)(ii), INA 1101(b)(1), 203(b)(4), 

& INA 203(d). 

*******

■ 3. Section 42.34 is revised to read as 

follows: 

§ 42.34 Special immigrant visas–certain 

U.S. Government employees. 

(a) General. An applicant is 

classifiable under INA 203(b)(4) as a 

special immigrant described in INA 

101(a)(27)(D) provided: 

(1) (i) The applicant has performed 

faithful service to the United States 

Government abroad, or the American 

Institute in Taiwan, for a total of fifteen 

years or more; or 

(ii) The applicant is the surviving 

spouse or child of an employee of the 

United States Government abroad who 

performed faithful service for a total of 

not less than 15 years or was killed in 

the line of duty; and 

(2) The principal officer of a Foreign 

Service establishment (or, in the case of 

the American Institute in Taiwan, the 

Director), recommends granting special 

immigrant status to such person in 

exceptional circumstances; and 

(3) The Secretary of State, or designee, 

approves such recommendation and 

finds that it is in the national interest to 

grant such status. 

(b) Petition requirement. An applicant 

who seeks classification as a special 

immigrant described in paragraph (a) of 

this section must file a Form DS–1884, 

Petition to Classify Special Immigrant 

under INA 203(b)(4) as an Employee or 

Former Employee of the U.S. 

Government Abroad, or the Surviving 

Spouse or Child of an Employee of the 

U.S. Government Abroad, with the 

Department of State. An applicant 

described in INA 101(a)(27)(D) may file 

such a petition only after, but within 

one year of, notification from the 

Department that the Secretary of State or 

designee has approved a 

recommendation from the principal 

officer that special immigrant status be 

accorded the applicant in exceptional 

circumstances and has found it in the 

national interest to do so. 

(1) Petition fees. The Secretary of 

State shall establish a fee for the filing 

of a petition to accord status under INA 

203(b)(4) which shall be collected 

following notification that the Secretary 

of State, or designee, has approved the 

recommendation that the applicant be 

granted status as a special immigrant 

under INA 101(a)(27)(D). 

(2) Establishing priority date. The 

priority date of an applicant seeking 

status under INA 203(b)(4) as a special 

immigrant described in INA 

101(a)(27)(D) shall be the date on which 

the petition to accord such 

classification, the DS–1884, is filed. The 

filing date of the petition is the date on 

which a properly completed form and 

the required fee are accepted by a 

Foreign Service post. Pursuant to INA 

203(d), and whether named in the 

petition, the current spouse or child 

who meets the definition of ‘‘child’’ 

under INA 101(b)(1) of an applicant 

classified under INA 203(b)(4), if not 

otherwise entitled to an immigrant 

status and the immediate issuance of a 

visa, is entitled to the classification and 

priority date of the beneficiary of the 

petition. 

(3) Delegation of authority to approve 

petitions. The authority to approve 

petitions to accord status under INA 

203(b)(4) to an applicant described in 

INA 101(a)(27)(D) is hereby delegated to 

the chief consular officer at the post of 

recommendation or, in the absence of 

the consular officer, to any alternate 

approving officer designated by the 

principal officer. Such authority may 

not be exercised until the Foreign 

Service post has received formal 

notification of the Secretary of State or 

designee’s approval of special 

immigrant status for the petitioning 

applicant. 

(4) Petition validity. Except as noted 

in this paragraph, the validity of a 

petition approved for classification 

under INA 203(b)(4) shall be six months 

beyond the date of the Secretary of 

State’s approval thereof or the 

availability of a visa number, whichever 

is later. 

(5) Extension of special immigrant 

status and petition validity. If the 

principal officer of a post concludes that 

circumstances in a particular case are 

such that an extension of validity of the 

Secretary of State or designee’s approval 

of the principal officer’s 

recommendation or of the petition 

would be in the national interest, the 


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99080 Federal Register / Vol. 89, No. 237 / Tuesday, December 10, 2024 / Rules and Regulations 

principal officer shall recommend to the 

Secretary of State or designee that such 

validity be extended for not more than 

one additional year. 

(c) Definitions—(1) Full-time service. 

Where 15 years of service is the 

minimum time required for eligibility 

for a special immigrant visa, the 

employee must have been employed for 

a total of at least 15 full-time years, or 

the equivalent thereof, in the service of 

the U.S. Government abroad. The 

number of hours per week that qualify 

an employee as full-time is dependent 

on local law and prevailing practice in 

the country where the individual is or 

was employed, as reflected in the 

employment documentation submitted 

with the application for special 

immigrant status. The years of service 

may be met based on employment 

abroad with one, or more than one, 

agency of the U.S. Government provided 

the total amount of full-time service 

with the U.S. Government is 15 years or 

more, or the equivalent thereof. 

(2) Faithful service. Where faithful 

service is required for eligibility for a 

special immigrant visa, an employee 

must have performed faithfully in the 

position held. The principal officer has 

the primary responsibility for 

determining whether the employee’s 

service meets this requirement. A record 

of disciplinary actions that have been 

taken against the employee does not 

automatically disqualify the applicant. 

The principal officer must assess the 

record of disciplinary actions 

considering the extent and gravity of the 

misconduct and when the incidents 

occurred, and determine whether the 

record as a whole, notwithstanding 

disciplinary actions, is one of faithful 

service. 

(3) Continuity. Where 15 years of 

service is the minimum time required 

for eligibility for a special immigrant 

visa, the employee’s period of service 

need not have been continuous but must 

have an aggregate total of 15 years of 

service to qualify. 

(4) Abroad. The service must have 

occurred anywhere outside the United 

States, as the term ‘‘United States’’ is 

defined in INA 101(a)(38). 

(5) Employment at the American 

Institute in Taiwan. INA 101(a)(27)(D) 

permits both present and former 

employees of the American Institute in 

Taiwan to apply for special immigrant 

status. An employee’s service before and 

after the founding of the American 

Institute in Taiwan is counted toward 

the minimum 15 years of service 

requirement. 

(6) Honorably retired. Separations 

within the meaning of ‘‘honorably 

retired’’ include, for example, those 

resulting from mandatory or voluntary 

retirement, reduction-in-force, or 

resignation for personal reasons. 

Separations not within the meaning of 

‘‘honorably retired’’ would include a 

termination for cause or an involuntary 

termination or resignation in lieu of a 

termination for cause. 

(7) Exceptional circumstances for 

employees of the United States 

Government abroad. For classification 

as a special immigrant under INA 

101(a)(27)(D)(i), the principal officer 

must determine that an employee 

demonstrates at least one form of 

‘‘exceptional circumstances’’ to support 

an application for special immigrant 

status. 

(i) Prima facie indicators of 

exceptional circumstances. In the 

following situations, an employee’s 

service with the U.S. Government 

generally will be deemed to have met 

exceptional circumstances. 

(A) Diplomatic relations between the 

employee’s country of nationality and 

the United States have been severed; 

(B) Diplomatic relations between the 

country in which the employee was 

employed and the United States have 

been severed; 

(C) The country in which the 

employee was employed and the United 

States have strained relations and the 

employee may be subjected to 

retribution by the local, State, Federal, 

or other official government body 

merely because of association with the 

U.S. Government, or the employee may 

be pressured to divulge information 

contrary to U.S. national interests; or 

(D) The employee was hired at the 

Consulate General at Hong Kong on or 

before July 1, 1999. 

(ii) Strong indicators of exceptional 

circumstances. (A) It is believed that 

continued service to the U.S. 

Government might endanger the life of 

the employee; 

(B) The employee has fulfilled 

responsibilities or given service in a 

manner that approaches the heroic; 

(C) The employee has been awarded 

a global or a regional ‘‘Foreign Service 

National of the Year’’ Award; 

(D) The employee has disclosed 

waste, fraud or abuse, a substantial and 

specific danger to public health or 

safety, or a violation of law, rule, or 

regulation within the Department or 

other U.S. Government agency, if such 

disclosure results in significant action 

by the Department or other U.S. 

Government agency against an offending 

party, such as termination or severance 

of a contractual relationship, or criminal 

charges against any person or entity. 

(E) The employee has served the U.S. 

Government for a period of twenty years 

or more. 

(8) Exceptional circumstances for 

surviving spouses and children. For 

classification as a special immigrant 

under INA 101(a)(27)(D)(ii), the 

principal officer must determine that 

the deceased employee: 

(i) Was killed in the line of duty; or 

(ii) Performed faithful service to the 

United States Government abroad for a 

total of not less than 15 years; and 

(A) Was employed by the U.S. 

Government as of the date of their death 

or in the immediately preceding period 

as defined in paragraph (c)(9) of this 

section, or 

(B) Was an honorably retired former 

employee who, prior to their death, 

demonstrated at least one form of 

‘‘exceptional circumstances’’ as defined 

in paragraph (c)(7) of this section. 

(9) Immediately preceding period. (i) 

As provided in paragraph (c)(8)(ii)(A) of 

this section, a deceased employee is 

considered to have been employed by 

the U.S. Government in the period 

immediately preceding their death if 

such employment ceased due to 

circumstances that resulted in their 

death. 

(ii) A deceased employee is presumed 

to not meet the criteria in paragraph 

(c)(8)(ii)(A) of this section if the 

employee’s death occurred more than 

five years following cessation of 

employment. This presumption can be 

rebutted if the applicant establishes, to 

the satisfaction of the principal officer, 

that the employment ceased due to 

circumstances that resulted in the 

employee’s death, and the Secretary or 

appropriate designee finds it in the 

national interest to grant such status. 

The principal officer has the primary 

responsibility for determining whether 

the applicant meets this criterion, taking 

into consideration as informed by the 

circumstances of the cessation of 

employment, the cause of the 

employee’s death as documented by the 

applicant, and other relevant evidence 

the applicant presents that demonstrates 

that the cessation of employment was 

for reasons that ultimately resulted in 

the employee’s death. 

(10) Immediate intent to immigrate. (i) 

The recommendation of the principal 

officer must certify that the applicant 

being recommended is prepared to file 

a petition within one year of the 

Department’s notification to the post of 

approval of special immigrant status, 

and to pursue an immigrant visa 

application within six months of the 

Secretary of State’s approval of the 

petition or of an immigrant visa 

becoming available, whichever is later. 


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Federal Register / Vol. 89, No. 237 / Tuesday, December 10, 2024 / Rules and Regulations 99081 

If the applicant is an employee who is 

not yet honorably retired, the 

recommendation must also certify that 

the employee intends permanent 

separation from U.S. Government 

employment abroad no later than the 

date of departure for the United States 

following issuance of an immigrant visa. 

(ii) Employees of Hong Kong 

Consulate General hired on or before 

July 1, 1999, are not required to 

establish immediate intent to immigrate. 

Employees of the Hong Kong Consulate 

General who received or were approved 

for special immigrant status before July 

1, 1999, also may continue employment 

with the U.S. Government. 

Julie M. Stufft, 

Deputy Assistant Secretary, Consular Affairs, 

Department of State. 

[FR Doc. 2024–28846 Filed 12–9–24; 8:45 am] 

BILLING CODE 4710–06–P 

DEPARTMENT OF STATE 

22 CFR Parts 122 and 129 

[Public Notice: 12542] 

RIN 1400–AF78 

International Traffic in Arms 

Regulations: Registration Fees 

AGENCY: Department of State. 

ACTION: Final rule. 

SUMMARY: The Department of State 

published a proposed rule on April 24, 

2024, requesting comment on proposals 

to amend the International Traffic in 

Arms Regulations (ITAR) by increasing 

and specifying the fees required for 

registration with the Directorate of 

Defense Trade Controls (DDTC). The 

Department now responds to the public 

comments received in response to that 

proposed rule and issues this final rule. 

DATES: This rule is effective January 9, 

2025. 

FOR FURTHER INFORMATION CONTACT: 

Allison Smith, Director, Office of 

Defense Trade Controls Management, 

Department of State, telephone (202) 

663–1282; email 

DDTCCustomerService@state.gov. 

ATTN: Registration Fee Change. 

SUPPLEMENTARY INFORMATION: 

Overview 

This final rule implements a change 

and increase in registration fees for 

certain persons required under 22 

U.S.C. 2778(b) to register with the 

Department of State’s Directorate of 

Defense Trade Controls (DDTC) and pay 

a registration fee. It also returns the 

amount of fees registrants must pay to 

the International Traffic in Arms 

Regulations (ITAR) (22 CFR parts 120 

through 130) and makes clarifying 

revisions to part 122 of the ITAR. This 

final rule follows a proposed rule (89 FR 

31119), published on April 24, 2024, 

which included the proposed revisions 

to DDTC’s registration fees and 

corresponding amendments to the ITAR. 

As noted in its proposed rule, for the 

first time in fifteen years, the 

Department proposed to revise and 

increase the registration fees (also 

referred to as ‘‘fees’’) charged to those 

required to register with DDTC. This 

increase is necessary because DDTC 

operations are primarily funded by fees. 

Without a sufficient increase to meet 

operational costs that have significantly 

risen since 2008, DDTC would be faced 

with untenable budget deficits and 

would be forced to reduce its services. 

In accordance with section 38(b) of 

the Arms Export Control Act (AECA) (22 

U.S.C. 2778(b)) and ITAR § 122.1 (22 

CFR 122.1), every person who engages 

in the business of manufacturing, 

exporting, temporarily importing, or 

brokering any defense articles or 

defense services is required to register 

with DDTC, the agency charged with 

administering the relevant sections of 

the AECA. Section 38(b) of the AECA 

also requires that every person required 

to register pay a registration fee. As the 

ITAR implements section 38 of the 

AECA, and as its parts 122 and 129 (22 

CFR parts 122 and 129) address 

registration, the Department proposed to 

revise those provisions to restate 

registration requirements without 

substantive change, to revise the 

Department’s methodology for 

determining the fees paid by certain 

registrants, to increase registration fees, 

and to reinsert the actual amount of fees 

within the ITAR itself. The Department 

now provides responses to comments 

received on the proposed rule and 

amends the ITAR as of the effective date 

of this rule, with one correction from 

the proposed rule. 

Summary of Changes From the 

Proposed Rule 

In this final rule, the Department 

makes the changes it previously 

proposed, with one minor change. Due 

to a typographical error, the Tier 3 fee 

multiplier for favorable determinations 

was misidentified in two places as 

$1,110 instead of the correct amount of 

$1,100. The Tier 3 fee multiplier was 

correctly introduced in the preamble as 

$1,100 (89 FR 31121), but a subsequent 

preamble reference to the Tier 3 fee 

multiplier was misidentified as $1,110 

(89 FR 31122). In addition, the incorrect 

reference was carried forward to 

amendatory instruction 3 of the 

proposed rule and identified the Tier 3 

fee multiplier at proposed § 122.3(a)(3) 

as $1,110 (89 FR 31124). This final rule 

adopts the correct Tier 3 fee multiplier 

of $1,100 at ITAR § 122.3(a)(3). 

Response to Comments 

During the 45-day public comment 

period (April 24, 2024, through June 10, 

2024) DDTC received 19 separate 

submissions from individuals, 

corporations, and industry associations 

in response to the notice of proposed 

rulemaking, some of which discussed 

more than one aspect of the proposed 

rule. All relevant comments addressed 

only ITAR § 122.3, which included 

proposed changes to the registration 

fees. The Department received no 

questions or comments on other changes 

in the proposed rule. 

Several commenters expressed a view 

that the proposed increase is an unjust 

burden on small business and may be a 

barrier to entry for new small business 

registrants. One commenter in particular 

claimed that the increase in registration 

fees would be especially difficult for 

manufacturers who do not export but 

are required by large corporations to be 

registered with DDTC to do business 

with them and advised the new 

registration fee would subject their 

company to paying 1 percent of their 

gross revenue to be able to sell products 

domestically for DoD end-use. As a 

threshold matter, the Department is 

aware that some private sector 

businesses elect to have their own 

separate requirement for businesses 

with which they contract to be 

registered with DDTC, even when those 

contracting businesses are not legally 

required to register with DDTC under 

ITAR § 122.1. Such varying 

requirements by some private sector 

businesses are outside of the scope of 

ITAR § 122.1. Pursuant to ITAR § 122.1, 

persons who are not engaged in the 

business of manufacturing, exporting, or 

temporarily importing defense articles 

are not required by ITAR § 122.1 to 

register with DDTC. With respect to the 

fee amount, the Department notes that 

registrants who do not export fall within 

Tier 1 and pay the base fee of $3,000. 

That base fee represents a 33.1 percent 

increase from the prior Tier 1 fee, which 

is approximately 12 percent less than 

the increase for Tier 2 and is slightly 

less than it would have been had the 

Department used the 40.1 percent 

inflation adjustment based on 2008 

dollars, when the registration fees were 

last amended. 

The Department acknowledges and 

understands the commenters’ concerns 

regarding small businesses. In response, 


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