[Federal Register Volume 59, Number 62 (Thursday, March 31, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-7579]
[[Page Unknown]]
[Federal Register: March 31, 1994]
_______________________________________________________________________
Part IV
Department of State
_______________________________________________________________________
Bureau of Consular Affairs
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22 CFR Parts 40 and 42
Visas: Documentation of Immigrants Under the Immigration and
Nationality Act and Registration for the Diversity Immigrant (DV-1)
Visa Program; Final Rule and Notice
DEPARTMENT OF STATE
Bureau of Consular Affairs
22 CFR Parts 40 and 42
[Public Notice 1973]
Visas: Documentation of Immigrants Under the Immigration and
Nationality Act As Amended
AGENCY: Bureau of Consular Affairs, Department of State.
ACTION: Final rule.
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SUMMARY: This final rule promulgates regulations to implement sections
201(a)(3), 201(e), 203(c) and 204(a)(1)(G) of the Immigration and
Nationality Act, as amended. These sections of law establish, effective
for Fiscal Year 1995 and thereafter, an annual immigration limit of
55,000 for diversity immigrants, aliens who are natives of countries
determined by specified mathematical computations based upon population
totals and totals of specified immigrant admissions over a five-year
period.
EFFECTIVE DATE: May 2, 1994.
FOR FURTHER INFORMATION CONTACT: Cornelius D. Scully, III, Director,
Office of Legislation, Regulations, and Advisory Assistance, Bureau of
Consular Affairs, (202) 663-1184.
SUPPLEMENTARY INFORMATION:
Background
Public notice 1925 at 58 FR 68791, December 29, 1993, proposed
amendments to 22 CFR part 42 to implement section 201(a)(3), 201(e),
203(c), 203(e)(2), and 204(a)(1)(G) of the Immigration and Nationality
Act, as amended. These sections were added to the Act by Public Law
101-649, the Immigration Act of 1990, but with a delayed effective
date. Taken together, they establish, effective for Fiscal Year 1995
and thereafter, an annual numerical limitation of 55,000 for diversity
immigrants.
Aliens who are natives of countries determined by specified
mathematical computations based upon population totals and totals of
specified immigrant admissions will be able to compete for immigration
under this limitation. Selection of immigrants under this limitation
will be at random from among those who submit petitions for
consideration during the application period established by the
Department and who meet certain requirements as to education or
occupational qualification.
The Public notice which accompanies this Final Rule includes (1)
the dates of the application period for Fiscal Year 1995; (2) the exact
mailing addresses to be used; (3) a detailed description of the
application process; (4) a listing of the countries whose natives may
compete for visas for Fiscal Year 1995, including the region in which
each country is located for this purpose; and (5) the apportionment of
the 55,000 overall limitation among the six regions specified by
statute. The list of participating countries and the apportionment of
the overall limitation among the various regions were prepared by the
Immigration and Naturalization Service, as contemplated by section
203(c)(1).
Analysis of Comments
During the comment period the Department received five timely
comments. A discussion of the comments, by topic, is set forth below.
Size of Mailing Envelopes
One commenter noted that the requirements concerning the size of
the envelope in which applications for selection must be mailed do not
comport with the size of standard business envelopes generally
available in office supply and stationery stores in the United States.
Upon inquiry, the Department has confirmed that the commenter is
correct and is amending that portion of the regulations to provide that
the envelope must be between 6 and 10 inches (15 cm to 25 cm) in
length. The requirements as to width--3 and one-half to 4 and one-half
inches (9 cm to 11 cm) remain unchanged.
Education Requirement
Two commenters found it unfair and unduly restrictive that the
proposed definition of ``high school education or its equivalent''
excluded from consideration passage of the G.E.D. (General Educational
Development) test. The proposed definition of this phrase was
formulated specifically to require actual successful completion of a
twelve year course of elementary and secondary education in the United
States or successful completion of a comparable course of elementary
and secondary study in a foreign country. After consideration of the
comments, the Department has decided not to modify the proposed
definition.
As was pointed out in the discussion of the proposed regulations,
the Department believes that requiring successful completion of a
formal course of study is consistent with Congressional intent in this
respect because of the inclusion of two years experience in an
occupation requiring two years experience or training as an alternative
basis for qualification. The Department does not believe that the
Congress intended to allow aliens who had neither completed elementary
and secondary education nor had such work experience to qualify under
this program.
Moreover, the G.E.D. is an American test. The Department does not
know whether there are counterparts in other countries and, if so, in
how many countries, nor do the commenters address this question. If it
should turn out that few, if any, foreign countries have counterparts
of the G.E.D., the only class of aliens who would be affected in any
way by a failure to recognize passage of the G.E.D. as the equivalent
of a high school education would be those in the United States who were
not permanent residents, who had failed to complete high school, whose
occupations did not meet the work experience requirement, but who had
passed the G.E.D., almost certainly a statistically insignificant class
when compared with the total number of potential applicants world-wide.
For these reasons, and in light of the added administrative
complications which might result, the Department does not believe that
an amendment of the definition of ``high school education or its
equivalent'' is warranted.
One commenter was concerned that the Department had failed to make
provision for a student who is able to complete his or her elementary
and secondary education in fewer than the normal twelve years. The
Department finds this concern to be unfounded, even puzzling. It is
true that occasionally a student may do so. It is also true that some
students, for a variety of reasons, require thirteen or fourteen years
to complete a twelve-year course of study. The proposed definition does
not require that the course of study have been completed in twelve
years; merely that it have been successfully completed. Thus, the
genius who completes it more quickly, the student who completes it in
the normal time period, and the student experiencing difficulties who
requires more than the normal time to do so will all have met the
requirement.
It had not occurred to the Department that the words employed in
the proposed definition would be interpreted to mean that the twelve-
year course of elementary and secondary study must have been completed
in precisely twelve years, neither more nor less. Since, however, at
least one reader of the proposed definition did so interpret them, the
Department has decided to amend the definition to eliminate this
interpretation by substituting for ``completion of twelve years of
elementary and secondary education in the United States'' the phrase
``completion of a twelve-year course of elementary and secondary
education in the United States.''
The same commenter also suggested that the Department should allow
for findings that the course content and quality of instruction in a
particular foreign school system might make eight or nine years of
schooling in that system the qualitative equivalent of twelve years of
instruction in the United States school system. The Department
categorically rejects the notion of introducing into this program value
judgments of that kind. The Department does not believe that the
Congress intended that such value judgments be made. In any event, the
Department wishes to make it absolutely clear that under no
circumstances will it entertain any such claims.
Two commenters voiced concern over the question of what
documentation will constitute evidence of successful completion of the
required course of study. A primary document would obviously be a
certificate of completion--in the United States, a high school diploma.
School transcripts would serve the same purpose. In general, any
documentation on this point will be acceptable provided that it was
issued by the person or organization responsible for maintaining such
records and describes with specificity the course of study completed.
One commenter asked for confirmation that the ``Junior
Certificate'' issued by the school system in the Republic of Ireland
will constitute evidence of completion of a foreign course of study
comparable to twelve years of elementary and secondary education in the
United States. Information available to the Department indicates that
the Junior Certificate is issued to those who have completed only
eleven years of the normal twelve year course of elementary and
secondary education in the Republic of Ireland. In light of this
information, the Department cannot accept the representation that the
Junior Certificate meets the requirements set forth in the regulations.
Work Experience
Two commenters addressed the work experience requirement. One
commenter felt that the requirement that the experience have been
gained during the five-year period immediately preceding application
for a visa was unduly restrictive. Whether or not that is so, the
requirement is a statutory one and not one which the Department is
entitled to modify or eliminate by regulation.
The other commenter objected to the Department's proposal to rely
upon the Department of Labor's Dictionary of Occupational Titles (DOT)
in determining which occupations meet the statutory requirement that
the occupation be one requiring ``at least two years training or
experience.'' The commenter urged that an applicant be allowed to
present evidence in support of the proposition that his or her
occupation is such an occupation. The Department rejects this
suggestion.
This requirement is clearly modelled upon the distinction provided
in section 203(b)(3) of the Act between ``skilled workers'' and ``other
workers.'' In implementing that distinction, the Immigration and
Naturalization Service relies upon determinations made with reference
to the DOT. The Department can find no basis for adopting a different
standard here.
The Department does recognize that there could be occupations of
such recent vintage (because of technological change) that they are not
listed in the most recent edition of the DOT. In such a case, but only
in such a case, the Department will consider documentation submitted by
the applicant on the question.
Submission of Supporting Documents
Two commenters suggested that all aliens competing for selection be
required to submit documentation of their education or work experience
with the application for selection. One of the two asserted that such a
requirement would deter frivolous applications; the other did not
recite a reason for the suggestion.
As was pointed out in the discussion of the proposed regulations,
the Department considered this option as one possible way to implement
the education/work experience requirement. It is possible that some
frivolous applications would thereby be deterred, although the
Department is less sanguine on that point than is the commenter.
Nonetheless, the administrative considerations which led to the earlier
rejection of that alternative are so strong that the Department feels
it necessary to again reject the suggestion.
Definition of ``Native''
One commenter again requested that the definition of ``native'' be
amended to allow for considering citizens of a country as ``natives''
of that country. This issue has previously been raised and discussed in
connection with the promulgation of regulations implementing the
earlier time-limited programs to which this program is similar. As it
has on the earlier occasions, the Department rejects the suggestion,
since it is inconsistent with the intent of the Congress in this
respect and would, in any event, substantially complicate the
administration of the numerical limitations and become an inducement to
fraud. Because of the persistence of this issue, the Department
believes it appropriate to discuss it in some detail.
Numerical limitations on immigration to the United States were
first imposed by the First Quota Act, the Act of May 19, 1921. That Act
specified that ``quota nationality'' was to be determined by country of
birth. The Immigration Act of 1924 continued that basic rule, while
allowing for according a parent's quota nationality to an accompanying
child or a husband's quota nationality to an accompanying wife.
The same rule was carried forward into the Immigration and
Nationality Act of 1952, except that the phrase ``quota nationality''
was replaced by ``quota chargeability.''. The two earlier exceptions
were modernized to remove discrimination because of sex--the benefit
which had flowed only to a wife from a husband was expanded to flow to
either spouse from the other--and a third was added to allow an alien
born in a quota area in which neither parent was born or had a
residence to be charged against the quota of either parent. These rules
were carried forward into the current numerical limitation system in
the basic reform of the numerical limitations in 1965, except that the
phrase ``quota chargeability'' was replaced by ``foreign state
chargeability.''
Thus, it is clear that the Congress has always intended that quota
nationality, quota chargeability, foreign state chargeability be
determined by place of birth with exceptions only as specifically
defined by law. The word ``native'' made its appearance in 1965 and in
the context clearly means ``chargeable to'' a foreign state according
to the rules, as described.
Until the establishment of the NP-5 program in 1986, foreign state
chargeability was not tied to qualification to compete for immigration,
but rather to possible variations in the length of time a qualified
immigrant would have to wait for his or her turn to be reached under
the applicable numerical limitation. Under the NP-5, OP-1, AA-1, and
now the forthcoming DV-1 programs, however, entitlement to compete for
consideration itself is based upon foreign state chargeability. Only
natives of specified foreign states have been entitled even to compete
for consideration. It is this fact that heightened interest in the
definition of ``native'' and which motivated the Department, first, to
discuss the subject in the commentary accompanying its implementing
regulations and, then, to incorporate a definition of the word into the
regulations implementing the AA-1 program. Now that the AA-1 program is
drawing to a close and since the implementing regulations will be
revoked after the program ends, the Department concluded that the
definition should be incorporated into the basic immigrant visa
regulations in part 42.
Because of the long history set forth briefly above, the Department
believes that it lacks the authority to define ``native'' otherwise
than it has done. In addition, the Department believes that to define
``native'' as based upon citizenship would substantially complicate the
administration of the numerical limitations on immigration and could
even be an inducement to fraudulent activity. An individual may have or
acquire several citizenships during a lifetime and can also lose
citizenships previously acquired, but can have only one place of birth.
An attempt to keep track of changes in citizenship in the numerical
limitation system would complicate the system. Moreover, allowing
citizenship to become the basis for foreign state chargeability could
motivate schemes to grant or obtain citizenship for the sole purpose of
gaining benefits under the immigration law. The Department has already
noted a number of cases in which countries seeking foreign investment
have, in effect, sold citizenship to foreign investors as an inducement
to invest. Interestingly enough, in several of these situations there
are documented cases of aliens using such schemes for the primary
purpose of obtaining the citizenship as part of a scheme to procure
entry into the United States fraudulently.
In summary, the Department believes (1) that defining ``native'' as
proposed herein is most consistent with the intent of the law as it now
stands; and (2) that introducing citizenship into the definition or
otherwise making it a basis for determining foreign state chargeability
would have adverse consequences for the orderly and effective
administration of the immigration laws. In this connection, the
Department has decided to modify 22 CFR 33(b) to add to the items of
information to be included on the petition the country of which the
alien claims to be a native, if other than the country of birth.
Confidentiality of Applications
One commenter repeated a request that has been made in connection
with the NP-5, OP-1, and AA-1 programs--that the Department guarantee
that no information from application forms will be given to anyone
outside the Department of State, including the Immigration and
Naturalization Service. The Department has previously taken the
position that applications for such programs constitute records
relating to the issuance and refusal of visas within the meaning of
section 222(f) of the Immigration and Nationality Act. Information from
such applications will not, therefore, be made available except as
authorized therein. This generally means that such information will not
be made public except in connection with court proceedings.
On the other hand, section 222(f) authorizes the use of such
information for the formulation, amendment, administration, and
enforcement of the immigration and other laws of the United States.
Accordingly, should the Immigration and Naturalization Service desire
such information for such purposes, the Department would ordinarily
furnish it.
Marking of Envelopes
One commenter expressed the view that an applicant should not be
disqualified for failure to list on the mailing envelope the country of
which he or she is a native. In past programs of this kind, the
Department has not been punctilious about disqualifying applications
which did not have this information on the mailing envelope. The public
should understand, however, that in the DV-1 program the Department
will disqualify all such applications.
The entire system for processing applications depends upon the
presence of this information, since envelopes received during the mail-
in period must be sorted into batches according to region and assigned
sequential numbers by region. Without the country of which the
applicant is a native on the mailing envelope the sorting and numbering
process would become unbearably burdensome. Thus, envelopes which do
not bear this item of information cannot, and will not, be processed
for consideration under the program.
Other Matters
One commenter urged that applications be accepted by FAX during the
application periods. The Department declines to consider such a
procedure and will require that all applications be mailed as
specified.
One commenter noted that there appears to be no special provisions
for waiving normally applicable grounds of exclusion for DV-1
applicants, as there were under the NP-5 extension and AA-1 programs.
In addition, the Department has received a number of telephone
inquiries on this subject. It is important to understand that there
are, indeed, no such provisions. Specifically, applicants under the NP-
5 program extension and under the AA-1 program were not subject to
section 212(e) of the Act (the two-year foreign residence requirement
applicable to some nonimmigrant exchange visitors) and could receive
waivers of ineligibility under section 212(a)(6)(C) unless the Attorney
General found it in the national interest to deny a waiver in an
individual case. Neither of these provisions applies to DV-1 applicants
who will have to meet all normally applicable rules for qualification
to receive an immigrant visa.
This final rule is not expected to have a significant impact on a
substantial number of small entities under the criteria of the
Regulatory Flexibility Act. In addition, this rule does not impose
information collection requirements under the provisions of the
Paperwork Reduction Act of 1980. This regulation is exempt from review
under Executive Order 12866, but was reviewed in the proposed rule
stage by OMB under Executive Order 12866 and has been reviewed
internally by the Department to ensure consistency with the objectives
thereof.
List of Subjects in 22 CFR Parts 40 and 42
Aliens, Definitions, Documentation, Immigrants, Numerical
limitations, Registration, Visas.
Accordingly, 22 CFR parts 40 and 42 are amended to read as follows:
PART 40--[AMENDED]
1. The authority citation for part 40 continues to read as follows:
Authority: Sec. 104, 66 Stat. 174, 8 U.S.C. 1104; Sec.
109(b)(1), Sec. 131 of Public Law 101-649, 104 Stat. 4997.
2. Section 40.1 is amended by redesignating paragraphs (l) through
(r) as paragraphs (m) through (s), respectively, and by adding a new
paragraph (l) to read as follows:
Sec. 40.1 Definitions.
* * * * *
(l) Native shall mean born within the territory of a foreign state,
or entitled to be charged for immigration purposes to that foreign
state pursuant to section 202(b) of the Immigration and Nationality
Act, as amended.
PART 42--[AMENDED]
3. The authority citation for part 42 is revised to read as
follows:
Authority: Sec. 104, 66 Stat. 174, 8 U.S.C. 1104; Sec.
109(b)(1); 91 Stat. 847; Sec. 131, 104 Stat. 4997. 8 U.S.C. 1153
note.
Section 42.33 is added to read as follows:
Sec. 42.33 Diversity Immigrants.
(a) General. (1) Eligibility to compete for consideration under
section 203(c). An alien shall be eligible to compete for consideration
for visa issuance under INA 203(c) during a fiscal year only if he or
she is a native of a low-admission foreign state, as determined by the
Attorney General pursuant to INA 203(c)(1)(E)(i), with respect to the
fiscal year in question; and if he or she has at least a high school
education or its equivalent or, within the five years preceding the
date of application for a visa, has two years of work experience in an
occupation requiring at least two years training or experience.
(2) Definition of high school education or its equivalent. For the
purposes of this section, the phrase high school education or its
equivalent shall mean successful completion of a twelve-year course of
elementary and secondary education in the United States or successful
completion in another country of a formal course of elementary and
secondary education comparable to completion of twelve years'
elementary and secondary education in the United States.
(3) Determinations of work experience. The most recent edition of
the Dictionary of Occupational Titles published by the Employment and
Training Administration, United States Department of Labor, shall be
controlling in determining whether a particular occupation is one
``which requires at least 2 years of training or experience'' as
provided in INA 203(c)(2).
(4) Limitation on number of petitions per year. No more than one
petition may be submitted by, or on behalf of, any alien for
consideration during any single fiscal year. If two or more petitions
for any single fiscal year are submitted by, or on behalf of, any
alien, all such petitions shall be void and the alien by or for whom
submitted shall not be eligible for consideration for visa issuance
during the fiscal year in question.
(5) Northern Ireland. For purposes of determining eligibility to
file a petition for consideration under INA 203(c) for a fiscal year,
the districts comprising that portion of the United Kingdom of Great
Britain and Northern Ireland, known as ``Northern Ireland'', shall be
treated as a separate foreign state. The districts comprising
``Northern Ireland'' are Antrim, Ards, Armagh, Ballymena, Ballymoney,
Banbridge, Belfast, Carrickfergus, Castlereagh, Coleraine, Cookstown,
Craigavon, Down, Dungannon, Fermanagh, Larne, Limavady, Lisburn,
Londonderry, Magherafelt, Moyle, Newry and Mourne, Newtownabbey, North
Down, Omagh, and Strabane.
(b) Petition for consideration--(1) Form of Petition. An alien
claiming to be entitled to compete for consideration under INA 203(c)
shall file a petition for such consideration. The petition shall
consist of a sheet of paper on which shall be typed or legibly printed
in the Roman alphabet the petitioner's name; date and place of birth
(including city and county, province or other political subdivision,
and country); the country of which the alien claims to be a native, if
other than the country of birth; name[s] and date[s] and place[s] of
birth of spouse and child[ren], if any; a current mailing address and
location of consular office nearest to current residence or, if in the
United States, nearest to last foreign residence prior to entry into
the U.S.
(2) Submission of petition--(i) General. A petition for
consideration for visa issuance under INA 203(c) shall be submitted by
mail to the address designated by the Department for that purpose. The
Department shall establish a period of not less than thirty days during
each fiscal year during which petitions for consideration during the
next following fiscal year may be submitted. Each fiscal year, the
Department shall give timely notice of both the mailing address and the
exact dates of the application period, through publication in the
Federal Register and such other methods as will ensure the widest
possible dissemination of the information, both abroad and within the
United States.
(ii) Form of mailing. Petitions for consideration under this
section shall be submitted by normal surface or air mail only.
Petitions submitted by hand, telegram, FAX, or by any means requiring
any form of special handling or acknowledgement of receipt will not be
given consideration. The petitioner shall type or print legibly, using
the Roman alphabet, on the upper left-hand corner of the envelope in
which the petition is mailed his or her full name and mailing address,
and the name of the country of which the petitioner is a native, as
shown on the petition itself. Envelopes shall be between 6 and 10
inches (15 cm to 25 cm) in length and between 3 and one-half and 4 and
one-half inches (9 cm to 11 cm) in width. Envelopes not bearing this
information and/or not conforming to the restrictions as to size shall
not be processed for consideration.
(c) Processing of petitions. Envelopes received at the mailing
address during the application period established for the fiscal year
in question and meeting the requirements of subsection (b) shall be
assigned a number in a separate numerical sequence established for each
regional area specified in INA 203(c)(1)(F). Upon completion of the
numbering of all envelopes, all numbers assigned for each region shall
be separately rank-ordered at random by a computer using standard
computer software for this purpose. The Department shall then select in
the rank orders determined by the computer program a quantity of
envelopes for each region estimated to be sufficient to ensure, to the
extent possible, usage of all immigrant visas authorized under INA
203(c) for the fiscal year in question.
(d) Approval of petitions. Envelopes selected pursuant to paragraph
(c) of this section shall be opened and reviewed. Petitions which are
legible and contain the information specified in paragraph (b) of this
section shall be approved for further consideration.
(e) Validity of approved petitions. A petition approved pursuant to
paragraph (d) of this section shall be valid for a period not to exceed
Midnight of the last day of the fiscal year for which the petition was
submitted.
(f) Order of consideration. Further consideration for visa issuance
of aliens whose petitions have been approved pursuant to paragraph (d)
of this section shall be in the regional rank orders established
pursuant to paragraph (c) of this section.
(g) Further processing. The Department shall inform applicants
whose petitions have been approved pursuant to paragraph (d) of this
section of the steps necessary to meet the requirements of INA 222(b)
in order to apply formally for an immigrant visa.
(h) Maintenance of information concerning petitioners who are visa
recipients. (1) The Department shall compile and maintain the following
information concerning petitioners to whom immigrant visas are issued
under INA 203(c):
(i) age;
(ii) country of birth;
(iii) marital status;
(iv) sex;
(v) level of education; and
(vi) occupation and level of occupational qualification.
(2) Names of visa recipients shall not be maintained in connection
with this information and the information shall be compiled and
maintained in such form that the identity of visa recipients cannot be
determined therefrom.
4. Section 42.51(b) is revised to read as follows:
Sec. 42.51 Department control of numerical limitations.
* * * * *
(b) Allocation of numbers. Within the foregoing limitations, the
Department shall allocate immigrant visa numbers for use in connection
with the issuance of immigrant visas and adjustments based on the
chronological order of the priority dates of visa applicants classified
under INA 203 (a) and (b) reported by consular officers pursuant to
Sec. 42.55(b) and of applicants for adjustment of status as reported by
officers of the INS, taking into account the requirements of INA 202(e)
in such allocations. In the case of applicants under INA 203(c), visa
numbers shall be allocated within the limitation for each specified
geographical region in the random order determined in accordance with
sec. 42.33(c) of this Part.
* * * * *
5. Section 42.54(a)(2) is revised to read as follows:
Sec. 42.54 Order of consideration.
(a) * * *
(2) Beginning with fiscal year 1995, in the random order
established by the Secretary of State for each region for the fiscal
year for applicants entitled to status under INA 203(c).
* * * * *
Dated: March 25, 1994.
David L. Hobbs,
Acting Assistant Secretary for Consular Affairs.
[FR Doc. 94-7579 Filed 3-30-94; 8:45 am]
BILLING CODE 4710-06-P