[Federal Register Volume 61, Number 16 (Wednesday, January 24, 1996)]
[Rules and Regulations]
[Pages 1837-1838]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1013]



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DEPARTMENT OF STATE
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.

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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 

[[Page 1838]]
status procedures, is addressed in the INS regulations, as that agency 
bears the responsibility for administering those provisions.

Interim Final Rule

    Law enforcement agencies need access to the benefits provided in 
this legislation and, while the Department can administer the S visa on 
the basis of the INA, without regulations, use of the S visa by law 
enforcement agencies will be facilitated by prompt formulation of these 
regulatory provisions and the guidance, controls, and structure they 
afford. Moreover, given the unique characteristics of the S visa, as a 
classification available in the discretion of the Attorney General or 
Secretary of State for law enforcement and counter-terrorism purposes 
only, this regulation does not pertain to a visa classification that 
will be available to the general public. Prior notice and public 
comment with respect to this rule are therefore impracticable, 
unnecessary and contrary to the public interest. Under these 
conditions, there is good cause under 5 U.S.C 553 to make the rule 
effective upon publication, with public comments to be considered 
thereafter.
    In accordance with 5 U.S.C. 605(b) [Regulatory Flexibility Act], it 
is certified that this rule does not have a ``significant adverse 
economic impact'' on a substantial number of small entities. This rule 
is exempt from E.O. 12866, but has been coordinated with the 
Immigration and Naturalization Service because joint action of the 
Secretary of State and the Attorney General is required under INA 
101(a)(15)(S), as amended. The rule imposes no reporting or 
recordkeeping action 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 is certified to be in 
compliance therewith.

List of Subjects in 22 CFR Part 41

    Aliens, Nonimmigrants, Passports and Visas, Witnesses and 
Informants.

    Accordingly, title 22, part 41 of the Code of Federal Regulations, 
is amended as follows:

PART 41--[AMENDED]

    1. The authority citation for part 41 is revised to read as 
follows:

    Authority: 8 U.S.C. 1104.

    2. Part 41, Subpart I is amended by revising the heading to read as 
follows:

Subpart I--Fiance(e)s and Other Nonimmigrants

    3. A new Sec. 41.82 is added to read as follows:


Sec. 41.82  Certain Parents and Children of Section 101(a)(27)(I) 
Special Immigrants [Reserved]

    4. A new Sec. 41.83 is added to read as follows:


Sec. 41.83  Certain Witnesses and Informants.

    (a) General. An alien shall be classifiable under the provisions of 
INA 101(a)(15)(S) if:
    (1) The consular officer is satisfied that the alien qualifies 
under the provisions of that section; and
    (2)(i) The consular officer has received verification from the 
Department of State, Visa Office, that:
    (A) in the case of INA 101(a)(15)(S)(i) the INS has certified on 
behalf of the Attorney General that the alien is accorded such 
classification, or
    (B) in the case of INA 101(a)(15)(S)(ii) the Assistant Secretary of 
State for Consular Affairs on behalf of the Secretary of State and the 
INS on behalf of the Attorney General have certified that the alien is 
accorded such classification;
    (ii) and the alien is granted an INA 212(d)(1) waiver of any INA 
212(a) ground of ineligibility known at the time of verification.
    (b) Certification of S visa status. The certification of status 
under INA 101(a)(15)(S)(i) by the Attorney General or of status under 
INA 101(a)(15)(S)(ii) by the Secretary of State and the Attorney 
General acting jointly does not establish that the alien is eligible to 
receive a nonimmigrant visa.
    (c) Validity of Visa. The period of validity of a visa authorized 
on the basis of paragraph (a) of this section shall not exceed the 
period indicated in the certification required in paragraph (b) and 
shall not in any case exceed the period of three years.

    Dated: December 6, 1995.
Mary A. Ryan,
Assistant Secretary for Consular Affairs.
[FR Doc. 96-1013 Filed 1-23-96; 8:45 am]
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