[Federal Register Volume 63, Number 4 (Wednesday, January 7, 1998)]
[Rules and Regulations]
[Pages 669-671]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-87]
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DEPARTMENT OF STATE
22 CFR Parts 40 and 41
[Public Notice 2665]
Bureau of Consular Affairs; Documentation of Nonimmigrants Under
the Immigration and Nationality Act, as Amended--Place of Application
AGENCY: Bureau of Consular Affairs, DOS.
ACTION: Interim rule with request for comments.
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SUMMARY: This rule results from a change in the law. A recent amendment
stated that, if a nonimmigrant stays in the United States longer than
permitted, the visa of that person is no longer valid. Only a new
nonimmigrant visa issued in the country of that person's nationality
will be valid for further entry into the United States. If the
Secretary of State has determined that extraordinary circumstances
exist, however, issuance of a new nonimmigrant visa in another country
will be acceptable. This rule, therefore, amends the regulation
pertaining to place of application to require such a person to apply in
the country of his or her nationality, sets forth some exceptions based
on extraordinary circumstances and defines the conditions for
determining ``extraordinary circumstances.''
DATES: This interim rule is effective January 7, 1998. Written comments
are invited
[[Page 670]]
and must be received on or before March 9, 1998.
ADDRESSES: Written comments may be submitted, in duplicate, to the
Chief, Legislation and Regulations Division, Visa Services, Department
of State, Washington, DC 20520-0106.
FOR FURTHER INFORMATION CONTACT:
H. Edward Odom, Chief, Legislation and Regulations Division, Visa
Services, Department of State, Washington, DC 20520-0106, (202) 663-
1204.
SUPPLEMENTARY INFORMATION: This rule amends both Part 40 and Part 41 of
Title 22 of the Federal Code of Regulations. It implements the
provisions of Section 632 of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (IIRIRA) with respect to the place
of application for nonimmigrants who have voided their previous visas
by overstaying the authorized period. Section 632 added a new
subsection (g) to INA 222 which renders the visas of such nonimmigrants
void.
Part 40 of 22 CFR sets forth the various regulations pertaining to
ineligibility under the INA. It is amended herein to include section
40.68, previously reserved, under the title ``Aliens Subject to INA
222(g)''. This new section states that any alien subject to INA 222(g)
is ineligible for a new nonimmigrant visa unless applying for it in
compliance with the place of application requirements of 22 CFR 41.101.
This rule then amends Section 41.101, which currently sets forth
the regulations for the normal place of application for a nonimmigrant
visa. It first redesignates the current paragraph (b) of 22 CFR 41.101
as paragraph (e). It then inserts a new paragraph (b) to include
requirements for most aliens subject to the provisions of INA 222(g) to
apply in the country of nationality. It also adds a new paragraph (c)
identifying certain extraordinary circumstances that permit some such
persons to apply in other specified countries. A new paragraph (d)
defines certain relevant terms.
Proposed 22 CFR 41.101(b) requires an alien subject to INA 222(g)
to apply in a consular district which is in, or includes, his or her
country of nationality unless the applicant is within stated
exceptions. This regulation then provides in paragraph (c) (1) through
(5) for certain varying extraordinary circumstances.
Paragraph (c)(1) relates to those for whom circumstances not under
the control of the alien rendered the prior visa void under INA
222(g)(1). Essentially, this subparagraph exculpates certain aliens
whose ``overstay'' was through no fault of their own and for whom there
is a clear national interest in not requiring the delay and expense of
returning to their place of nationality. Specifically, this regulation
excepts those physicians serving in underserved areas of the United
States under the provisions of INA 214(k) for whom a waiver of the
foreign residence requirement under INA 212(e) or a petition to accord
H-1B status was filed prior to the end of their authorized period of
stay but that period expired during the adjudication of those
applications. It is in the interest of the United States that such
medical care-givers be able to enter on (or return to) their duties in
the underserved area without unnecessary delays often caused by lengthy
travel. Moreover, their sponsors can more fruitfully use the money
required for such travel for other health purposes. Subparagraph (c)(2)
provides for the possibility of further such determinations.
The title of IIRIRA Section 632 is ``Elimination of Consulate
Shopping for Visa Overstays.'' It seems clear from both the title and
the text of the provision that the Congress intended that future visa
applications of period-of-stay violators should be adjudicated by those
best situated to assess the bona fides of the nonimmigrant visa
applicant; i.e., Congressional intent lay in requiring special scrutiny
of ``overstay'' visa applicants.
Most people live in the country of their nationality, which the
statute designates as the proper place of application for aliens
subject to INA 222(g). Many other people, however, live elsewhere. The
best place to adjudicate bona fides is not, in all probability, in the
country of nationality in such cases. If an alien has spent years
outside his or her country of nationality, returning there may not
provide the special scrutiny desired by the Congress. Applying where
one lives probably will. For this reason, Section 41.101(c) (3) and (4)
propose other places of application for certain individuals subject to
INA 222(g)(1).
Subparagraph (c)(3) requires aliens subject to INA 222(g) who are
residents of a third country to apply in the country of residence.
Subparagraph (c)(4) directs a national and resident of a country in
which there is no United States consular office to apply in the country
designated by the Department to accept immigrant visa applications from
persons of that nationality. This latter directive is in accordance
with INA 222(g)(2)(A) which authorizes the Secretary to specify the
place of application for such aliens. Subparagraph 41.101(c)(5)
addresses another circumstance not falling within the norm: dual
nationals. A dual national must apply in the county of residence.
Paragraph (d) defines ``extraordinary circumstances'' and
``nationality'' with respect to stateless persons. For purposes of visa
issuance in the context of INA 222(g), a stateless person shall be
considered to be a national of the country which issued his or her
travel document.
Section 41.121(a), ``Grounds of refusal'', is also amended to
include INA 222(g).
Interim Rule
The provision of law being implemented became effective on
enactment of IIRIRA, September 20, 1996, and consular officers have
been complying with it based on guidance essentially akin to that in
this interim rule but not yet codified in regulations. It is essential
that a formal regulatory order undergird their actions at the earliest
possible date. Therefore, the implementation of this rule as an interim
rule, with a 60-day provision for post-promulgation public comments, is
based upon the ``good cause'' exceptions set forth at 5 U.S.C.
553(b)(3)(B) and 553(d)(3).
This rule is favorable to alien physicians in underserved areas and
in other respects is not expected 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
recordkeeping action on the public requiring the approval of the Office
of Management and Budget under the Paperwork Reduction Act
requirements. This rule is exempted from E.O. 12866 but has been
reviewed to ensure consistency therewith.
List of Subjects
22 CFR Part 40
Aliens, Inadmissibility, Nonimmigrants, Passports, Visas.
22 CFR Part 41
Aliens, Nonimmigrants, Passports, Visas.
In view of the foregoing, 22 CFR Part 40 is amended as follows:
PART 40--[AMENDED]
1. The authority citation for Part 40 continues to read:
Authority: 8 U.S.C. 1104.
2. Section 40.68 is added to read as follows:
[[Page 671]]
Sec. 40.68 Aliens subject to INA 222(g).
An alien who, under the provisions of INA 222(g), has voided a
nonimmigrant visa by remaining in the United States beyond the period
of authorized stay is ineligible for a new nonimmigrant visa unless the
alien complies with the requirements in 22 CFR 41.101 (b) or (c)
regarding the place of application.
PART 41--[AMENDED]
1. The authority citation for Part 41 continues to read:
Authority: 8 U.S.C. 1104.
2. 22 CFR 41.101 is amended by removing the period at the end of
paragraph (a)(1)(ii) and adding a semicolon and ``or'', adding
paragraph (a)(1)(iii), amending paragraph (a)(2) by removing ``to the
Visa Office'' and adding ``for Visa Services'' in its place, and
redesignating paragraph (b) as paragraph (e) and adding new paragraphs
(b) through (d) to read as follows:
Sec. 41.101 Place of application.
(a) * * *
(1) * * *
(iii) The alien is subject to INA 222(g) and must apply as set
forth in paragraph (b) or (c) of this section.
(b) Place of application for persons subject to INA 222(g).
Notwithstanding the requirements of paragraph (a) of this section, an
alien whose prior nonimmigrant visa has been voided pursuant to INA
222(g), who is applying for a new nonimmigrant visa, shall make
application at a consular office which has jurisdiction in or for the
country of the alien's nationality unless extraordinary circumstances
have been determined to exist with respect to that alien as set forth
in paragraph (c) of this section.
(c) Exceptions based on extraordinary circumstances. (1) An alien
physician serving in underserved areas of the United States under the
provisions of INA 214(k) for whom an application for a waiver of the 2-
year foreign residence requirement and/or a petition to accord H-1B
status was filed prior to the end of the alien's authorized period of
stay and was subsequently approved, but whose authorized stay expired
during the adjudication of such application(s), shall make application
in accordance with paragraph (a) of this section.
(2) Any other individual or group whose circumstances are
determined to be extraordinary, in accordance with paragraph (d)(1) of
this section, by the Deputy Assistant Secretary for Visa Services upon
the favorable recommendation of an immigration or consular officer,
shall make application in accordance with paragraph (a) of this
section.
(3) An alien who has, or immediately prior to the alien's last
entry into the United States had, a residence in a country other than
the country of the alien's nationality shall apply at a consular office
with jurisdiction in or for the country of residence.
(4) An alien who is a national and resident of a country in which
there is no United States consular office shall apply at a consular
office designated by the Deputy Assistant Secretary for Visa Services
to accept immigrant visa applications from persons of that nationality.
(5) An alien who possesses more than one nationality and who has,
or immediately prior to the alien's last entry into the United States
had, a residence in one of the countries of the alien's nationality
shall apply at a consular office in the country of such residence.
(d) Definitions relevant to INA 222(g). (1) Extraordinary
circumstances--Extraordinary circumstances may be found where
compelling humanitarian or national interests exist or where necessary
for the effective administration of the immigration laws. Extraordinary
circumstances shall not be found upon the basis of convenience or
financial burden to the alien, the alien's relative, or the alien's
employer.
(2) Nationality--For purposes of paragraph (b) of this section, a
stateless person shall be considered to be a national of the country
which issued the alien's travel document.
* * * * *
Sec. 41.121 [Amended]
3. 22 CFR 41.121(a) is amended by removing ``or'' before ``INA
22(g)'' at the end of the first sentence, and adding a comma and ``or
INA 222(g)'' after ``INA 221(g)''.
Dated: December 5, 1997.
Mary A. Ryan,
Assistant Secretary for Consular Affairs.
[FR Doc. 98-87 Filed 1-6-98; 8:45 am]
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