02-4260. Termination of the Designation of Argentina as a Participant Under the Visa Waiver Program

AGENCY:

Immigration and Naturalization Service, Justice.

ACTION:

Interim rule with request for comments.

SUMMARY:

The Visa Waiver Program (VWP) permits nationals from designated countries to apply for admission to the United States for ninety (90) days or less as visitors for business or pleasure without first obtaining a nonimmigrant visa. On July 8, 1996, Argentina was added as a participating country in the VWP. Due to the current economic crisis in Argentina and the increase in the number of Argentine nationals attempting to use the program to live and work illegally in the United States, the Department of Justice, in consultation with the Department of State, has determined that Argentina's participation in the VWP is inconsistent with the U.S. interest in enforcement of the immigration laws of the United States. Accordingly, this rule terminates Argentina's designation as a VWP participant. Argentine nationals who intend to travel to the United States for legitimate business or pleasure must acquire a nonimmigrant visa at a U.S. consulate or embassy prior to their arrival in the United States.

DATES:

Effective date: This interim rule is effective February 21, 2002.

Comment date: Written comments must be submitted on or before April 22, 2002.

ADDRESSES:

Please submit written comments to the Director, Regulations and Forms Services Division, Immigration and Naturalization Service, 425 I Street, NW, Room 4034, Washington, DC 20536. To ensure proper handling, please reference INS No. 2188-02 on your correspondence. Comments may be submitted electronically to the Immigration and Naturalization Service (Service) at [e-mail]. Comments submitted electronically should include the INS No. 2188-02 in the subject heading. Comments are available for public inspection at the above address by calling [phone] to arrange for an appointment.

FOR FURTHER INFORMATION CONTACT:

Marty Newingham, Assistant Chief Inspector, Inspections Division, Immigration and Naturalization Service, 425 I Street NW, Room 4064, Washington, DC 20536, telephone number: [phone].

SUPPLEMENTARY INFORMATION:

What Is the VWP?

The VWP permits nationals from designated countries to apply for admission to the United States for ninety (90) days or less as nonimmigrant visitors for business or pleasure without first obtaining a nonimmigrant visa from a U.S. consular officer abroad, provided that all statutory and regulatory requirements are met. 8 U.S.C. 1187(a). If arriving by air or sea, a VWP traveler must arrive on a carrier that signed an agreement (signatory carrier) guaranteeing to transport inadmissible or deportable VWP travelers out of the United States at no expense to the United States. 8 U.S.C. 1187(e).

Why Is Argentina's Designation in the VWP Being Terminated?

Since December 2001, Argentina has been experiencing a serious economic crisis, including defaulting on loans by foreign creditors, devaluation of its currency, and increased levels of unemployment and poverty. As the economic climate has deteriorated in Argentina, the Immigration and Nationalization Service (Service) has experienced a pronounced increase in the number of Argentine nationals attempting to use the VWP to enter the United States to live and work illegally. While the number of Argentine nonimmigrant travelers to the United States declined between 1998 (518,770) and 2000 (516,153), the number of Argentines denied admission at the border rose from 173 cases in 1998 to 529 cases in 2000. Preliminary data suggest that the number of Argentines refused admission at the border nearly doubled from 2000 to 2001. Interior apprehensions also increased from 97 cases in 1998 to 230 cases in 2001. Since November 2001, Argentine VWP applicants for admission have been telling U.S. immigration officers at ports-of-entry (POEs) that they intend to reside in and seek employment in the United States because of the poor economic situation in Argentina. Many Argentine nationals use the VWP to obtain entry to the United States solely for the purpose of proceeding to the Canadian border and pursuing an asylum claim in Canada. According to Citizenship and Immigration Canada (CIC), over the last two years, more than 2,500 Argentines have filed refugee claims in Canada after transiting the United States under the VWP.

While the Argentine passport itself is a relatively secure document, the process for obtaining the documents to procure a passport lacks integrity, adding to the risk of successful organized smuggling of aliens into the United States.

Terminating Argentina's VWP program designation, thereby reinstating the regular nonimmigrant visa requirements for Argentine nationals, will make it more difficult for unauthorized immigrants to enter the United States. As with nationals of all other countries not designated for VWP, Argentine nationals seeking to enter the United States will have to apply for a nonimmigrant visa at a U.S. consular office abroad, and they will be screened again by an immigration officer at a U.S. port of entry to determine admissibility.

What Legal Authority Has the Attorney General Invoked To Terminate Argentina's VWP Designation?

Sections 217(c)(5)(B)(i) and (c)(5)(B)(ii)(IV) of the Immigration and Nationality Act (8 U.S.C. 1187(c)(5)(B)(i) and (c)(5)(B)(ii)(IV)) require the Attorney General, in consultation with the Secretary of State, to terminate a country's VWP designation if he determines that a severe economic collapse in a program country threatens the law enforcement or security interests of the United States, including the interest in enforcement of the immigration laws of the United States.

What Does This Rule Do?

The Attorney General, in consultation with the Department of State, has determined that, due to the existence of the conditions set forth in INA section 217(c)(5)(B)(ii)(IV), Argentina's participation in the VWP threatens the United States' interest in enforcement of the immigration laws. Accordingly, Argentine citizens are no longer eligible to participate in the VWP. Effective February 21, 2002, Argentina is removed as a participating country in the VWP.

What Is the Legal Status of an Argentine National Who Was Admitted to the United States Under the VWP Before February 21, 2002 and Who Has Time Remaining on His or Her Period of Admission?

As long as the alien lawfully gained admission under the VWP before the effective date of this termination of designation notice, and continues to be in compliance with the terms of his or her admission, he or she may remain in the United States for the period of time authorized on the date of admission.

The Department notes, however, that an alien admitted as a visitor for business or pleasure under the VWP is not eligible for change or extension of nonimmigrant status under the existing regulations.

Good Cause Exception

This interim rule is effective February 21, 2002, although the Service invites post-promulgation comments and will address any such comments in a final rule. The Service finds that good cause exists for adopting this rule without the prior notice and comment period ordinarily required by 5 U.S.C. 553 for the following reasons. Since December 2001, Argentina has experienced a severe economic crisis and, at the same time, the Service has experienced an increasing number of Argentines attempting to use the program to work and live illegally in the United States—thus abusing the program. Increasing program abuse by Argentine nationals is inconsistent with the United States' interest in enforcing its immigration laws. Reestablishing the normal nonimmigrant visa requirements for Argentine nationals will have the immediate effect of stemming the flow of unauthorized immigration to the United States by such nationals. It would be contrary to the law and the public interest to allow such a threat to the immigration enforcement interests of the United States to continue. Because delaying the effective date of this interim rule is impractical and contrary to the public interest, there is good cause under 5 U.S.C. 553 to make this rule effective upon publication in the Federal Register.

Regulatory Flexibility Act

The Attorney General, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving it, certifies that this rule will not have a significant economic impact on a substantial number of small entities. Although individuals doing business with small entities will no longer be allowed to enter the United States without having a visa, they will be able to seek admission to the United States by obtaining a nonimmigrant visa at a United States consulate or embassy prior to arrival in the United States. This action is necessary to further the law enforcement and national security interests of the United States.

Executive Order 12866

This rule is considered by the Department of Justice, to be a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review. Accordingly, this rule has been submitted to the Office of Management and Budget (OMB) for review.

Executive Order 13132

This rule 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 warrant the preparation of a federalism summary impact statement.

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 or more in any one 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 251 of the Small Business Regulatory Enforcement Act of 1996. 5 U.S.C. 804. 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 12988

This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.

Paperwork Reduction Act

Under the Paperwork Reduction Act of 1995, Public Law 104-13, 109 Stat. 163, all departments are required to submit to OMB, for review and approval, any reporting requirements inherent in a final rule. This rule does not impose any new reporting and recordkeeping requirements under the Paperwork Reduction Act.

List of Subjects in 8 CFR Part 217

• Air carriers
• Aliens
• Maritime carriers
• Passports and visas

Accordingly, 8 CFR chapter I is amended as follows:

PART 217—VISA WAIVER PROGRAM

1. The heading for part 217 is revised as set forth above.

2. The authority citation for part 217 continues to read as follows:

Authority: 8 U.S.C. 1103, 1187; 8 CFR part 2.

§ 217.2

[Amended]

3. Section 217.2(a) is amended under the definition “Designated country” by removing “Argentina,” from the list of countries.

Dated: February 15, 2002.

Larry D. Thompson,

Acting Attorney General.