[Federal Register Volume 61, Number 16 (Wednesday, January 24, 1996)]
[Rules and Regulations]
[Pages 1834-1837]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1012]



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DEPARTMENT OF STATE
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.

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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outdated or otherwise in need of reform.''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: Secs. 40.1(h), 40.1(m), 40.51(a) and (c) and 40.52.
Part 41: Secs. 41.11(a) and (b); 41.12; and 41.42(b)(1).
Part 42: Secs. 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: Secs. 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 
Sec. 40.1(m) and Sec. 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, Sec. 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 Sec. 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 Sec. 40.101, 
``therefore'' should have read ``therefor.'' In the July 2, 1991 issue, 
on page 30428 in the first column under Sec. 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 Sec. 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 
Sec. 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 Sec. 41.3(d) the word ``consulat'' should be ``consular''; 
in Sec. 42.63(a)(2) the word ``custory'' should read ``custody''; in 
Sec. 42.72(e) the parentheses around the ``(Pub. L. 101-649)'' should 
be removed; and in Sec. 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 Sec. 41.113, the citation ``INA 101(a)(3)'' 
should read ``INA 101(a)(30).'' This rule 

[[Page 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.


Sec. 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 Sec. 40.1 paragraphs (h)(2) and (3), and (m) are revised and 
paragraph (h)(4) is added to read as follows:


Sec. 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 Sec. 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:


Sec. 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:


Sec. 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:


Sec. 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:


Sec. 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:


Sec. 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:


Sec. 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:


Sec. 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. 

[[Page 1836]]

    (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:


Sec. 41.12  Classification symbols.

* * * * *

------------------------------------------------------------------------
            Symbol class                        Section of law          
------------------------------------------------------------------------
                                                                        
              *        *        *        *        *                     
S-7  Certain Aliens Supplying         101(a)(15)(S)(i).                 
 Critical Information Relating to a                                     
 Criminal Organization or Enterprise.                                   
S-8  Certain Aliens Supplying         101(a)(15)(S)(ii).                
 Critical Information Relating to                                       
 Terrorism.                                                             
------------------------------------------------------------------------

* * * * *
    13. Section 41.42 is amended by revising paragraph (b)(1) to read 
as follows:


Sec. 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:


Sec. 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.

Sec. 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:


Sec. 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.
* * * * *


Sec. 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:


Sec. 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 
Sec. 42.52(c)
* * * * *
    20. Section 42.63 is amended by revising paragraph (a)(2) to read 
as follows:


Sec. 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:


Sec. 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:


Sec. 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. 
    
[[Page 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.


Sec. 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]
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