02-5325. Documentation of Nonimmigrants Under the Immigration and Nationality Act, as Amended: Automatic Visa Revalidation; Interim Rule

AGENCY:

Department of State.

ACTION:

Interim rule; request for comments.

SUMMARY:

Due to the need for greater security screening of visa applicants, the Department is amending the provision for automatic revalidation of expired visas for nonimmigrant aliens returning from short visits to other North American countries or adjacent islands to exclude from its benefits aliens who apply for new visas during such visits and aliens who are nationals of countries identified as state sponsors of terrorism.

DATES:

This interim rule is effective on April 1, 2002. Written comments must be received on or before May 6, 2002.

ADDRESSES:

Written comments may be submitted, in duplicate, to the Legislation and Regulations Division, Visa Services, Department of State, Washington, DC 20520-0106, or by e-mail to [e-mail].

FOR FURTHER INFORMATION CONTACT:

Elizabeth J. Harper, Legislation and Regulations Division, Visa Services, Department of State, Washington, DC 20520-0106, [phone], e-mail ([e-mail]) or fax at [phone].

SUPPLEMENTARY INFORMATION:

What Is the Background for This Action?

Section 42.112(d) of 22 CFR provides for the automatic revalidation of nonimmigrant visas of aliens who have been out of the United States for less than 30 days in contiguous territory and have an Arrival-Departure Record showing INS approval of an unexpired period of admission. Such aliens may be applying for readmission in the same classification or in a new classification authorized by the INS prior to their departure. In the latter case, the revalidation includes a conversion to the new classification. In the case of a qualified student or exchange visitor who has a remaining period of authorized stay, the not-more-than-30 day absence may have been in either contiguous territory or adjacent islands other than Cuba.

Why Is This Action Being Taken With Respect to Applicants for New Visas?

In some cases, persons who are abroad during an absence of 30 days or less in contiguous territory opt to apply for a new visa during that absence in lieu of relying on an automatic revalidation. Due to the need for greater security screening of visa applicants, which in some cases may mean delays in the issuance of new visas, the Department of State believes it is prudent to restrict the ability of such persons to return to the United States prior to the completion of all such checks and the issuance of a new visa.

Why Is it Being Taken With Regard to Visa Applicants From Countries That Sponsor Terrorism?

In light of recent terrorist actions undertaken by aliens, some or all of whom had entered the United States with nonimmigrant visas, it has become clear that we cannot rely upon an assumption that a person who obtained a visa for one reason still has only that reason for wishing to return to the United States. We find a closer examination of certain aliens seeking to enter or reenter the United States must be undertaken. Thus, the Department finds the automatic revalidation of nonimmigrant visas should no longer be available to individuals whose home countries have been identified as sponsoring terrorism.

What Countries Have Been so Identified and Under What Authority?

Several laws require the Department to designate a foreign state as one sponsoring terrorism. They are: Section 620A of the foreign Assistance Act, Section 40 of the Arms Export Control Act, and Section 6(j) of the Export Administration Act. Consequently, the Department periodically publishes a report, Patterns of Global Terrorism, updating such designations. Currently, the designated countries are Iraq, Iran, Syria, Libya, Sudan, North Korea, and Cuba.

Is This Intended To Be a Permanent Tightening of the Entry of Visitors and Other Nonimmigrants?

We hope that the time will come when circumstances will permit the restoration of this privilege to all bona fide nonimmigrants but we do not anticipate that time being in the near future.

Regulatory Analysis and Notices

Administrative Procedure Act

The Department is publishing this rule as an interim rule, with a 60-day provision for post-promulgation public comments, based on the “good cause” exceptions set forth at 5 U.S.C. 553(b)(3)(B) and 553(d)(3). It is dictated by the recent terrorist attacks on the United States and the necessity of additional controls over the entry of aliens at this time.

Regulatory Flexibility Act

Pursuant to § 605 of the Regulatory Flexibility Act, the Department has assessed the potential impact of this rule, and the Assistant Secretary for Consular Affairs hereby certifies that is not expected to have a significant economic impact on a substantial number of small entities.

Unfunded Mandates Reform Act of 1995

This rule will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100 million in any year and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996

This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Act of 1996. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

Executive Order 12866

The Department of State does not consider this rule, to be a “significant regulatory action” under Executive Order 12866, section, section 3(f), Regulatory Planning and Review. Therefore, in accordance with the letter to the Department of State of February 4, 1994 from the Director of the Office of Management and Budget, it does not require review by the Office of Management and Budget.

Executive Order 13132

This regulation will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to require consultations or warrant the preparation of a federalism summary impact statement.

Paperwork Reduction Act

This rule does not impose any new reporting or record-keeping requirements subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 35.

List of Subjects in 22 CFR Part 41

• Aliens
• Passports and visas

Accordingly, the Department of State amends 22 CFR Chapter I as set forth below.

PART 41—[AMENDED]

1. The authority citation for part 41 continues to read:

Authority: 8 U.S.C. 1104; 8 U.S.C. 1181, 1201, 1202; Pub. L. 105-277, 112 Stat. 2681 et seq.

2. Revise § 41.112(d) to read as follows:

§ 41.112

Validity of visa.

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(d) Automatic extension of validity at ports of entry. (1) Provided that the requirements set out in paragraph (d)(2) of this section are fully met, the following provisions apply to nonimmigrant aliens seeking readmission at ports of entry:

(i) The validity of an expired nonimmigrant visa issued under INA 101(a)(15) may be considered to be automatically extended to the date of application for readmission; and

(ii) In cases where the original nonimmigrant classification of an alien has been changed by INS to another nonimmigrant classification, the validity of an expired or unexpired nonimmigrant visa may be considered to be automatically extended to the date of application for readmission, and the visa may be converted as necessary to that changed classification.

(2) The provisions in paragraph (d)(1) of this section are applicable only in the case of a nonimmigrant alien who:

(i) Is in possession of a Form I-94, Arrival-Departure Record, endorsed by INS to show an unexpired period of initial admission or extension of stay, or, in the case of a qualified F or J student or exchange visitor or the accompanying spouse or child of such an alien, is in possession of a current Form I-20, Certificate of Eligibility for Nonimmigrant Student Status, or Form IAP-66, Certificate of Eligibility for Exchange Visitor Status, issued by the school the student has been authorized to attend by INS, or by the sponsor of the exchange program in which the alien has been authorized to participate by INS, and endorsed by the issuing school official or program sponsor to indicate the period of initial admission or extension of stay authorized by INS;

(ii) Is applying for readmission after an absence not exceeding 30 days solely in contiguous territory, or, in the case of a student or exchange visitor or accompanying spouse or child meeting the stipulations of paragraph (d)(2)(i) of this section, after an absence not exceeding 30 days in contiguous territory or adjacent islands other than Cuba;

(iii) Has maintained and intends to resume nonimmigrant status;

(iv) Is applying for readmission within the authorized period of initial admission or extension of stay;

(v) Is in possession of a valid passport;

(vi) Does not require authorization for admission under INA 212(d)(3); and

(vii) Has not applied for a new visa while abroad.

(3) The provisions in paragraphs (d)(1) and (d)(2) of this section shall not apply to the nationals of countries identified as supporting terrorism in the Department's annual report to Congress entitled Patterns of Global Terrorism.

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Dated: February 7, 2002.

Mary A. Ryan,

Assistant Secretary for Consular Affairs, Department of State.