1834 Federal Register / Vol. 61, No. 16 / Wednesday, January 24, 1996 / Rules and Regulations

the period of authorized stay in such

classification.

* * * * *

(b) * * *

(c) Validity of Visa. The period of

validity of a visa issued on the basis of

paragraph (a) of this section must not

exceed the period indicated in the

petition, notification, or confirmation

required in paragraph (a)(2) of this

section.

Dated: December 14, 1995.

Mary A. Ryan,

Assistant Secretary for Consular Affairs.

[FR Doc. 96–1011 Filed 1–23–96; 8:45 am]

BILLING CODE 4710–06–P

22 CFR Parts 40, 41, 42, 43, 44, 45, and

47

[Public Notice 2311]

Visas: Regulations Pertaining to Both

Nonimmigrants and Immigrants Under

the Immigration and Nationality Act, as

Amended

AGENCY: Bureau of Consular Affairs,

DOS.

ACTION: Final rule.

SUMMARY: On March 4, 1995, the

President, as part of the

Administration’s regulatory reinvention

initiative, directed all heads of

departments and agencies, inter alia, to

conduct a page-by-page review of all

regulations and to ‘‘eliminate or revise

those that are outdated or otherwise in

need of reform.’’ (Memorandum for

Heads of Departments and Agencies,

Regulatory Reinvention Initiative,

March 4, 1995.) In response, the Visa

Office of the Department of State has

undertaken a review of its visa

regulations to determine whether they

may be eliminated, shortened, or

rewritten in a more understandable

fashion. This final rule reflects the first

publication of changes to 22 CFR,

Chapter I being made as a result of this

review.

EFFECTIVE DATE: January 24, 1996.

FOR FURTHER INFORMATION CONTACT:

Stephen K. Fischel, Chief, Legislation

and Regulations Division, Visa Office,

(202) 663–1204.

SUPPLEMENTARY INFORMATION: The

President has directed each agency to

undertake a review of its regulations for

the purpose of reducing the regulations

or, when possible, rendering them more

readable and comprehensible. The Visa

Office of the Department of State has

engaged in a thorough line-by-line

review of all visa related regulations in

parts 40 through 45 and part 47 of Title

22 of the Code of Federal Regulations.

As a result, the Visa Office is proposing

various amendments to the regulations

consistent with the President’s

directive. The Visa Office is also using

this opportunity to make other

necessary changes to the regulations.

The Visa Office will be publishing the

proposed changes in a series of separate

publications.

Updating

Several regulations were originally

crafted to address time-limited

circumstances under the law. With the

passage of time or as the result of the

enactment of technical corrections,

these provisions have become moot.

Consequently, pertinent amendments

are made to the following sections:

Part 40: §§ 40.1(h), 40.1(m), 40.51(a) and

(c) and 40.52.

Part 41: §§ 41.11(a) and (b); 41.12; and

41.42(b)(1).

Part 42: §§ 42.31(c); 42.52(a); 42.54;

42.55(a); and 42.74(b).

This rule also repeals Parts 43; 44 and

47.

S Visa

This rule assigns visa symbols to the

visa classifications created by the

provisions of section 130003 of Pub. L.

103–322 which concerns aliens who

supply to the U.S. critical information

relating to terrorism and criminal

organizations or enterprises. This rule

revises section 41.12 to reflect the

existence of these new nonimmigrant

classifications and to provide the

appropriate visa symbols.

Terminated Programs

The Immigration Reform and Control

Act of 1986 (Pub. L. 99–603), the

Immigration Amendments Act of 1988

(Pub. L. 100–658), and the Immigration

Act of 1990 (Pub. L. 101–649) created

several temporary immigrant

classifications. The following parts are

being repealed by this rule since these

programs have terminated with the

passage of time: Part 43 which

implemented the FY 1987–FY 1988

Nonpreference Program under sec. 314

of Pub. L. 99–603 (commonly known as

the NP–5 Program), and its successor,

the FY 1992–1994 Diversity Transitional

Visa Program under sec. 132 of Pub. L.

101–649 (commonly known as the AA–

1 Program); Part 44 which implemented

the FY 1990–1991 Immigrant Program

under sec. 3 of Pub. L. 100–658

(commonly known as the OP–1

program); and Part 47 which

implemented the FY 1991–1993

Transitional Program for Displaced

Tibetans, sec. 134 of Pub. L. 101–649.

Transitional Visas for Legalized Aliens

Sec. 112 of the Immigration Act of

1990 (Pub. L. 101–649) provided

transitional immigrant visa numbers for

legalized aliens in FY 1992–1994. As

this provision lapsed, the following

sections are amended to remove any

reference to the transitional provisions:

§§ 42.31(c) 42.52(a), 42.54, 42.55(a) and

42.74(b).

Miscellaneous Provisions

Several other sections of 22 CFR have

been amended to reflect changes in the

law. Sec. 40.1(h) is amended to accord

immigrant visa status under INA 203(b),

the Diversity Program. It is also edited

for clarity. As the Immigration Act of

1990 (Pub. L. 101–649) imposed

different effective dates for various

subtitles of the Act, both § 40.1(m) and

§ 40.51(a) and (c) were written to

conform with those variances in

effective dates. They are now edited to

remove any reference to such dates.

Lastly, § 41.41(b)(1) has been amended

to remove the reference to the obsolete

Form I–551.

Typographical Corrections

Previous issues of the Federal

Register contained typographical errors

which are being corrected in this rule.

On page 21211 in the issue of May 7,

1991, in the third column under

paragraph (b) of the regulation at

§ 40.63(b), ‘‘hereunder’’ should have

read ‘‘thereunder.’’ In the same

publication on page 21212 in the second

column under paragraph (a)(5) of the

regulation at § 40.101, ‘‘therefore’’

should have read ‘‘therefor.’’ In the July

2, 1991 issue, on page 30428 in the first

column under § 41.1, the reference to

‘‘INA 212(a)(i)(I)’’ in the introductory

paragraph should have read ‘‘INA

212(a)(7)(B)(i)(I), (i)(II),’’and under

§ 41.1(a) there should have been a

comma following the words ‘‘permanent

residence.’’ Finally in the first column

of the July 17, 1991 issue, on page 32507

under § 45.5(e), the word ‘‘position’’ in

the fourth line should have read

‘‘petition.’’

The 1995 edition of 22 CFR contains

the following typographical errors: in

§ 41.3(d) the word ‘‘consulat’’ should be

‘‘consular’’; in § 42.63(a)(2) the word

‘‘custory’’ should read ‘‘custody’’; in

§ 42.72(e) the parentheses around the

‘‘(Pub. L. 101–649)’’ should be removed;

and in § 42.82(g)(1) the ‘‘e’’ should be

removed from the word ‘‘therefore’’. On

page 42611 in the November 5, 1987

issue in the third column under

§ 41.113, the citation ‘‘INA 101(a)(3)’’

should read ‘‘INA 101(a)(30).’’ This rule
Federal Register / Vol. 61, No. 16 / Wednesday, January 24, 1996 / Rules and Regulations 1835

also makes the corrections to these

typographical errors.

Final Rule

Because this rule contains no

substantive changes to 22 CFR, it has

been determined that notice and public

comment are unnecessary. This rule,

therefore, meets the good cause

exception under 5(b)(B) and is being

published as a final rule.

This rule is not considered to have a

significant impact on a substantial

number of small entities under the

criteria of the Regulatory Flexibility Act.

This rule imposes no reporting or record

keeping requirements on the public

requiring the approval of the Office of

Management and Budget under the

Paperwork Reduction Act.

This rule has been reviewed as

required by E.O. 12778 and certified to

be in compliance therewith. It is exempt

from E.O. 12866 but has been reviewed

and found to be consistent therewith.

List of Subjects in 22 CFR Parts 40, 41,

42, 43, 44, and 47

Aliens, Nonimmigrants, Immigrants,

Visas and passports.

Final Regulations

In view of the foregoing, under the

authority at 8 U.S.C. 1104, title 22 of the

Code of Federal Regulations subchapter

E—parts 40, 41, and 42 are amended to

read as follows and, under the authority

of sections 132, 133, and 134 of Pub. L.

101–649, 104 Stats. 5000 and 5001,

parts 43, 44, and 47 are removed and

reserved.

PART 40—[AMENDED]

1. The authority citation for part 40

continues to read:

Authority: 8 U.S.C. 1104.

§ 40.9 [Removed and reserved]

2. Part 40 is amended by removing

and reserving section 40.9 of subpart

A—General Provisions of subchapter

E—VISAS.

3. In § 40.1 paragraphs (h)(2) and (3),

and (m) are revised and paragraph (h)(4)

is added to read as follows:

§ 40.1 Definitions.

* * * * *

(h) * * *

(2) Has satisfied the consular officer

as to entitlement to special immigrant

status under INA 101(a)(27) (A) or (B);

(3) Has been selected by the annual

selection system to apply under INA

203(c); or

(4) Is an alien described in § 40.51(c).

* * * * *

(m) Not subject to numerical

limitation means that the alien is

entitled to immigrant status as an

immediate relative within the meaning

of INA 201(b)(2)(i), or as a special

immigrant within the meaning of INA

101(a)(27) (A) and (B), unless

specifically subject to a limitation other

than under INA 201(a), (b), or (c).

4. Section 40.51 is amended by

revising paragraphs (a) and (c) to read as

follows:

§ 40.51 Labor certification.

(a) INA 212(a)(5) applicable only to

certain immigrant aliens. INA

212(a)(5)(A) applies only to immigrant

aliens described in INA 203(b)(2) or (3)

who are seeking to enter the United

States for the purpose of engaging in

gainful employment.

* * * * *

(c) Labor certification not required in

certain cases. A spouse or child

accompanying or following to join an

alien spouse or parent who is a

beneficiary of a petition approved

pursuant to INA 203(b)(2) or (3) is not

considered to be within the purview of

INA 212(a)(5).

5. Section 40.52 is revised to read as

follows:

§ 40.52 Unqualified physicians.

INA 212(a)(5)(B) applies only to

immigrant aliens described in INA

203(a) (2) or (3).

6. Section 40.63 is amended by

revising paragraph (b) to read as follows:

§ 40.63 Misrepresentation

* * * * *

(b) Misrepresentation in application

under Displaced Persons Act or Refugee

Relief Act. Subject to the conditions

stated in INA 212(a)(6)(c)(i), an alien

who is found by the consular officer to

have made a willful misrepresentation

within the meaning of section 10 of the

Displaced Persons Act of 1948, as

amended, for the purpose of gaining

admission into the United States as an

eligible displaced person, or to have

made a material misrepresentation

within the meaning of section 11(e) of

the Refugee Relief Act of 1953, as

amended, for the purpose of gaining

admission into the United States as an

alien eligible thereunder , shall be

considered ineligible under the

provisions of INA 212(a)(6)(C).

* * * * *

7. Section 40.101 is amended by

revising paragraph (a)(5) to read as

follows:

§ 40.101 Failure of application to comply

with INA.

(a) Refusal under INA 221(g). The

consular officer shall refuse an alien’s

visa application under INA 221(g)(2) as

failing to comply with the provisions of

INA or the implementing regulations if:

(1) * * *

(5) The necessary fee is not paid for

the issuance of the visa or, in the case

of an immigrant visa, for the application

therefor;

(6) * * *

PART 41—[AMENDED]

8. The authority citation for part 41

continues to read:

Authority: 8 U.S.C. 1104.

9. Section 41.1 is amended by revising

the introductory text and paragraph (a)

to read as follows:

§ 41.1 Exemption by law or treaty from

passport and visa requirements.

Nonimmigrants in the following

categories are exempt from the passport

and visa requirements of INA

212(a)(7)(B)(i)(I), (i)(II):

(a) Alien members of the U.S. Armed

Forces. An alien member of the U.S.

Armed Forces in uniform or bearing

proper military identification, who has

not been lawfully admitted for

permanent residence, coming to the

United States under official orders or

permit of such Armed Forces (Sec. 284,

86 Stat. 232; 8 U.S.C. 1354).

* * * * *

10. Section 41.3 is amended by

revising paragraph (d) to read as

follows:

§ 41.3 Waiver by joint action of consular

and immigration officers of passport and/or

visa requirements.

* * * * *

(d) Emergent circumstances; visa

waiver. An alien well and favorably

known at the consular office, who was

previously issued a nonimmigrant visa

which has expired, and who is

proceeding directly to the United States

under emergent circumstances which

preclude the timely issuance of a visa.

* * * * *

11. Section 41.11(a) and (b)(1) are

revised to read as follows:

§ 41.11 Entitlement to nonimmigrant

status.

(a) Presumption of immigrant status

and burden of proof. An applicant for a

nonimmigrant visa, other than an alien

applying for a visa under INA 101(a)(15)

(H)(i) or (L), shall be presumed to be an

immigrant until the consular officer is

satisfied that the alien is entitled to a

nonimmigrant status described in INA

101(a)(15) or otherwise established by

law or treaty. The burden of proof is

upon the applicant to establish

entitlement for nonimmigrant status and

the type of nonimmigrant visa for which

application is made.
1836 Federal Register / Vol. 61, No. 16 / Wednesday, January 24, 1996 / Rules and Regulations

(b) Aliens unable to establish

nonimmigrant status. (1) A

nonimmigrant visa shall not be issued to

an alien who has failed to overcome the

presumption of immigrant status

established by INA 214(b).

* * * * *

12. In section 41.12 the table

removing the entries for ‘‘S–1 and S–2’’

and adding new entries for ‘‘S–7 and S–

8’’ to read as follows:

§ 41.12 Classification symbols.

* * * * *

Symbol class Section of law

* * * * *

S–7 Certain Aliens

Supplying Critical

Information Relating

to a Criminal Organization or Enterprise.

101(a)(15)(S)(i).

S–8 Certain Aliens

Supplying Critical

Information Relating

to Terrorism.

101(a)(15)(S)(ii).

* * * * *

13. Section 41.42 is amended by

revising paragraph (b)(1) to read as

follows:

§ 41.42 Crew-list visas.

* * * * *

(b) Application. (1) A list of all alien

crewmen serving on a vessel or aircraft

proceeding to the United States and not

in possession of a valid individual D

visa or INS Form I–151, Alien

Registration Receipt Card, shall be

submitted in duplicate to a consular

officer on INS Form I–418, Passenger

List—Crew List, or other prescribed

forms. The duplicate copy of Form I–

418 must show in column (4) the date,

city, and country of birth of each person

listed and in column (5) the place of

issuance and the issuing authority of the

passport held by that person. For

aircraft crewmen, the manifest issued by

the International Civil Aviation

Organization (ICAO) or Customs Form

7507, General Declaration, may be used

in lieu of Form I–418 if there is

adequate space for the list of names.

* * * * *

14. Section 41.113 is amended by

revising paragraph (k)(2) introductory

text to read as follows:

§ 41.113 Procedures in issuing visas.

* * * * *

(k) * * *

(2) Is the holder of an official identity

card which has been issued for

participation in such Games under the

Olympic Rules Bylaws, which includes

the signature of a competent authority of

the participating government and the

assurance of that government’s

recognition of the card for re-entry by

the bearer for an additional period of six

months beyond the expiration date of

the card, and which otherwise meets the

requirements of sections 101(a)(30) and

212(a)(7)(B)(i)(I) of the Immigration and

Nationality Act, a stamp consisting of:

* * * * *

PART 42—[AMENDED]

15. The authority citation for Part 42

continues to read:

Authority: 8 U.S.C. 1104.

§ 42.31 Family-sponsored immigrants.

16. Section 42.31 is amended by

removing paragraph (c).

17. Section 42.52 is amended by

revising paragraph (a) to read as follows:

§ 42.52 Post records of visa applications.

(a) Waiting list. Records of individual

visa applicants entitled to an immigrant

classification and their priority dates

shall be maintained at posts at which

immigrant visas are issued. These

records shall indicate the chronological

and preferential order in which

consideration may be given to

immigrant visa applications within the

several immigrant classifications subject

to the numerical limitations specified in

INA 201, 202, and 203. Similar records

shall be kept for the classes specified in

INA 201(b)(2) and 101(a)(27) (A) and (B)

which are not subject to numerical

limitations. The records which pertain

to applicants subject to numerical

limitations constitute ‘‘waiting lists’’

within the meaning of INA 203(e)(3) as

redesignated by the Immigration Act of

1990.

* * * * *

§ 42.54 Order of consideration.

18. Section 42.54 is amended by

removing paragraph (b).

19. Section 42.55 is amended by

revising paragraph (a) to read as follows:

§ 42.55 Reports on numbers and priority

dates of applications on record.

(a) Consular officers shall report

periodically, as the Department may

direct, the number and priority dates of

all applicants subject to the numerical

limitations prescribed in INA 201, 202,

and 203 whose immigrant visa

applications have been recorded in

accordance with § 42.52(c)

* * * * *

20. Section 42.63 is amended by

revising paragraph (a)(2) to read as

follows:

§ 42.63 Application forms and other

documentation.

(a) * * *

(2) Application of alien under 14 or

physically incapable. The application

on Form OF–230 for an alien under 14

years of age or one physically incapable

of completing an application may be

executed by the alien’s parent or

guardian, or, if the alien has no parent

or guardian, by any person having legal

custody of, or a legitimate interest in,

the alien.

* * * * *

21. Section 42.72 is amended by

revising paragraph (e) introductory text

to read as follows:

§ 42.72 Validity of visas.

* * * * *

(e) Aliens entitled to the benefits of

section 154(a) and (b) of Pub. L. 101–

649.

* * * * *

22. Section 42.74 is amended by

revising paragraph (b) to read as follows:

§ 42.74 Issuance of new or replacement

visas.

* * * * *

(b) Replacement immigrant visa for an

alien subject to numerical limitation. An

immigrant documented under INA

203(a), (b), or (c) or under section 124

of the Immigration Act of 1990, who

was or will be unable to use the visa

during the period of its validity because

of reasons beyond the alien’s control

and for which the alien is not

responsible, may be issued a

replacement immigrant visa under the

original number during the same fiscal

year in which the original visa was

issued (provided the number has not

been returned to the Department), if the

consular officer then finds the alien

qualified. The alien must pay anew the

statutory application and issuance fees.

Prior to issuing a replacement

immigrant visa at a consular office other

than the one that issued the original

visa, the consular officer must also

ascertain whether the original issuing

office knows of any reason why a

replacement visa should not be issued.

In issuing a visa under this paragraph,

the consular officer shall insert the word

‘‘REPLACE’’ on Form OF–155A,

Immigrant Visa and Alien Registration,

before the word ‘‘IMMIGRANT’’ in the

title of the visa.

* * * * *

23. Part 43, 44 and 47 are removed

and reserved.
Federal Register / Vol. 61, No. 16 / Wednesday, January 24, 1996 / Rules and Regulations 1837

PART 43—[REMOVED AND

RESERVED]

PART 44—[REMOVED AND

RESERVED]

PART 47—[REMOVED AND

RESERVED]

PART 45—[AMENDED]

24. The authority citation for part 45

continues to read as follows:

Authority: 8 U.S.C. 1104; 8 U.S.C. 1153.

25. Section 45.5 is amended by

revising paragraph (e) to read as follows:

PART 45 VISAS: DOCUMENTATION OF

IMMIGRANTS UNDER SECTION 124 OF

PUBLIC LAW 101–649.

§ 45.5 Redetermination of admissibility if

visa validity extended.

* * * * *

(e) For the purposes of this section,

‘‘qualifying position’’ shall include both

the position occupied by the alien at the

time the petition in the alien’s behalf

was approved and any other position

within the petitioning entity’s

organization, regardless of geographical

location, which would otherwise meet

the requirements for approval of such a

petition in the alien’s behalf. For the

purposes of this section, qualifying

employment shall mean any position in

the United States of the kind required

for approval of such a petition.

Dated: December 15, 1995.

Mary A. Ryan,

Assistant Secretary for Consular Affairs.

[FR Doc. 96–1012 Filed 1–23–96; 8:45 am]

BILLING CODE 4710–06–P

22 CFR Part 41

[Public Notice 2403]

Visas: Documentation of

Nonimmigrants Under the Immigration

and Nationality Act, as Amended

AGENCY: Bureau of Consular Affairs,

Department of State.

ACTION: Interim final rule, with request

for comments.

SUMMARY: The Violent Crime Control

and Law Enforcement Act of 1994

created a new nonimmigrant visa

classification by adding section

101(a)(15)(S) to the Immigration and

Nationality Act. These regulatory

amendments establish standards for the

issuance of nonimmigrant visas under

this classification.

DATES: Effective January 24, 1996.

Written comments are invited and must

be received on or before March 25, 1996.

ADDRESSES: Written comments may be

submitted, in duplicate, to the Chief,

Legislation and Regulations Division,

Visa Services, Department of State,

Washington, D.C. 20522–0113, (202)

663–1204.

SUPPLEMENTARY INFORMATION: The

Violent Crime Control and Law

Enforcement Act of 1994, Public Law

103–322, was signed by the President on

September 13, 1994. Section 130003 of

the Act amended the Immigration and

Nationality Act by adding section

101(a)(15)(S), a new nonimmigrant visa

classification. This visa classification

provides for the admission into the

United States of certain alien witnesses

and informants.

The first of two paragraphs of the new

section 101(a)(15)(S) provides for the

admission of aliens determined by the

Attorney General to possess critical

reliable information concerning a

criminal organization or enterprise. The

alien must be willing to provide that

information to federal and/or state

authorities, and the Attorney General

must determine that his/her presence is

essential to the success of an authorized

criminal investigation or prosecution.

Pursuant to a new section 214(j)(i) of the

INA also added by section 13003, no

more than 100 visas are available in this

category per fiscal year.

The second paragraph of 101(a)(15)(S)

provides for nonimmigrant visas for

aliens whom the Secretary of State and

the Attorney General jointly determine

possess critical reliable information

about a terrorist organization, enterprise

or operation, and who are willing to

provide or have provided such

information to federal law enforcement

authorities, or a federal court, and who

will be or have been placed in danger

as the result of providing such

information. They must also be eligible

for an award under section 36(a) of the

State Department’s Basic Authorities

Act of 1956. Pursuant to the new section

214(j)(i) of the INA referred to above, no

more than 25 visas are available in this

category per fiscal year.

The spouse, married and unmarried

sons and daughters, and parents of

aliens classified under subsection (S)(i)

or (S)(ii) may be granted derivative

status, if the Attorney General (or in the

case of (S)(ii), the Secretary of State and

the Attorney General jointly) consider it

appropriate.

The enactment of this section

provides a new mechanism to admit

aliens into the U.S. as witnesses and

informants. Under past law the only

means to admit such aliens were either

in the B visa category or under parole.

This visa classification requires the

Attorney General in the case of the first

subsection and the Attorney General

and the Secretary of State in the case of

the second subsection to determine that

all the statutory requirements are met

prior to visa issuance. The Immigration

and Naturalization Service (INS) has

promulgated extensive regulations [60

FR 44260] on this classification,

explaining how the law enforcement

agencies interact with the Attorney

General in order to meet the applicable

legal requirements.

Under subsection (ii) of the S

classification, the Secretary of State and

the Attorney General act jointly in

determining the alien’s entitlement to

classification. The initial stages of

processing under (S)(ii) lie with the

Department of State. When a potential

(S)(ii) alien is identified, it must be

determined that the alien is eligible to

receive a reward under section 36(a) of

the State Department Basic Authorities

Act of 1956. The responsibility of

carrying out this reward program under

section 36(a) of that Act is delegated by

the Secretary of State to the Assistant

Secretary of State for Diplomatic

Security. Section 226 of Volume 12 of

the Foreign Affairs Manual sets forth the

procedures established to carry out the

requirements of section 36(a),

processing of cases through the rewards

committee. Determination of eligibility

for receipt of a reward under section

36(a) made by the rewards committee is

certified to the Assistant Secretary of

State for Consular Affairs, to whom the

Secretary has delegated the

responsibility to implement the visa

function under the Immigration and

Nationality Act, which would

necessarily include the recently added

section 101(a)(15)(S). Acting on behalf

of the Assistant Secretary for Consular

Affairs, the Visa Office will then certify

to the Attorney General the alien’s

eligibility for classification under

subsection (s)(ii).

When determinations of entitlement

to visa status under either section (S)(i)

or (S)(ii) are completed, the INS, on

behalf of the Attorney General, certifies

such to the Visa Office which then

communicates with the relevant

consular post. The consular officer will

process the visa application pursuant to

guidance and instruction provided by

the Visa Office. A visa may be

authorized for the period necessary

pursuant to the Attorney General’s

certification, but for a period not to

exceed the three year statutory limit.

The implementation of the numerical

limitation, as well as the adjustment of