02-270. Documentation of Immigrants Under the Immigration and Nationality Act, as Amended-Immediate Relatives

AGENCY:

Department of State.

ACTION:

Interim rule.

SUMMARY:

The Department is adding to the definition of immediate relatives the widows and children whose spouses/parents were the victims of the terrorist acts of September 11, 2001.

DATES:

This interim rule is effective on January 11, 2002. Written comments must be received on or before 60 days from January 11, 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:

How Does This Differ From the Present Provision for Widows/Widowers?

INA 201(b)(2)(A)(1) grants the right to self-petition for status as an immediate relative to widows/widowers (and any children thereof) who had been married to a U.S. citizen for at least two years prior to the citizen's death. Section 423 of Pub. Law 107-56 (the “USA Patriot Act”) expanded that entitlement for those widowed as a direct result of the terrorist acts of September 11, 2001, without any regard to the length of the marriage. As in INA 201(b), the widow(er) must have not been legally separated from the spouse at the time of the citizen's death, and must file a petition for immediate relative status within two years of the death, having not remarried in the interim.

Were Any Other Such Changes Made?

Children also benefitted from Sec. 423. Any child of a U.S. citizen who was killed in one of the terrorist acts of September 11, 2001, may file a petition for status as an immediate relative child within two years of the death of the parent, regardless of changes in age or marital status. Both of these provisions are being added to 22 CFR 42.21, the regulation governing immigration by immediate relatives.

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). The provision of law being incorporated has been in effect since the date of enactment, October 26, 2001, and the prompt implementation thereof is for the benefit of victims of a national disaster.

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 42

• Aliens
• Passports and visas

Accordingly, the Department of State amends 22 CFR, part 42 as set forth below.

PART 42—[AMENDED]

1. The authority citation for part 42 continues to read:

Authority: 8 U.S.C. 1104.

2. Amend § 42.21 by revising paragraph (b) and adding paragraph (c) to read as follows:

§ 42.21

Immediate relatives.

* * * * *

(b) Spouse of a deceased U.S. citizen. The spouse of a deceased U.S. citizen, and each child of the spouse, will be entitled to immediate relative status after the date of the citizen's death provided the spouse or child meets the criteria of INA 201(b)(2)(A)(i) or of section 423(a)(1) of Public Law 107-56 (USA Patriot Act) and the Consular Officer has received an approved petition from the INS which accords such status, or official notification of such approval, and the Consular Officer is satisfied that the alien meets those criteria.

(c) Child of a U.S. citizen victim of terrorism. The child of a U.S. citizen slain in the terrorist actions of September 11, 2001, shall retain the status of an immediate relative child (regardless of changes in age or marital status) if the child files a petition for such status within two years of the citizen's death pursuant to section 423(a)(2) of Public Law 107-56, and the consular officer has received an approved petition according such status or official notification of such approval.

Dated: November 29, 2001.

Mary A. Ryan,

Assistant Secretary for Consular Affairs, Department of State.