[Federal Register Volume 63, Number 191 (Friday, October 2, 1998)]
[Rules and Regulations]
[Pages 52969-52970]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-26383]
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DEPARTMENT OF STATE
22 CFR Part 41
[Public Notice 2894]
Documentation of Nonimmigrants Under the Immigration and
Nationality Act, as Amended--Fees for Application and Issuance of
Nonimmigrant VIsas
AGENCY: Department of State.
ACTION: Final rule.
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SUMMARY: This rule finalizes, with one amendment, the interim rule
published May 1, 1998, (63 FR 24107) relating to the waiver of visa
fees for a
[[Page 52970]]
nonimmigrant alien who will be engaged in charitable activities in the
United States. It also discusses the comments received in response to
that rule.
DATES: This rule is effective October 2, 1998.
FOR FURTHER INFORMATION CONTACT: H. Edward Odom, Chief, Legislation and
Regulations Division, Visa Services, Department of State, Washington,
D.C. 20520-0106, (202) 663-1204.
SUPPLEMENTARY INFORMATION: Only one set of comments was received in
response to the interim rule. The responder approved of the formulation
of the requirement relating to the fees being a financial burden but
had reservations about the other portions of the regulations added as a
new paragraph (2) to 22 CFR 41.107(c).
Charitable Organizations
Specifically, the commenter was concerned by the language relating
to a foreign charitable organization as needing to be recognized by its
government ``under criteria substantially similar to those of section
501(c)(3)'' (the benchmark for charitable institutions in the United
States), to wit, ``To interpret `substantially similar' to mean `almost
the same', is problematic''. The commenter thus proposes that we apply
the 501(c)(3) analogy only to institutions in countries which do not
have any laws recognizing public charities.
The interim rule analogized to section 501(c)(3) of the Internal
Revenue Code because it relates specifically to organizations engaged
in charitable activities, as distinct from other non-profit
organizations which are also tax-exempt under 501(c). We believe this
to be a necessary distinction in connection with a provision of law
designed explicitly to benefit those ``coming to the United States
primarily for * * * a charitable purpose''. We are willing to accept
the legal classification by other governments of charitable
institutions, however, and modify that subparagraph accordingly.
Who Can Benefit?
The commenter was also concerned that section 41.107(c)(2)(ii)
``could be interpreted as limiting the charitable activities for
services `only to the poor and needy' '' (emphasis supplied by the
commenter). ``The statutory language does not limit the range of
charitable services to the poor and needy.'' Fear was then expressed
that this could disqualify providers of nursing services in hospitals
that treat both those who are poor and needy and those who are not. The
Department believes that the intent of the provision, informally dubbed
by its sponsor as ``the Mother Theresa amendment'', did indeed relate
specifically to assistance to the poor and needy. This belief stems
directly from the express language of the statute: ``* * * the
Secretary shall waive or reduce the fee * * * for any alien coming to
the United States primarily for, * * * direct service or assistance to
poor or otherwise needy individuals in the United States.'' (emphasis
supplied) The Department also believes, however, that laws must be
implemented reasonably, and therefore would not disqualify health-care
providers who would be working at not-for-profit hospitals that were
established primarily for the care of the poor and needy but may also
take in some (not more than 25%) paying patients. Therefore, although
the regulation will not be amended, the Department will issue further
guidance to consular officers in this regard.
Location and Duration
Not least, the commenting organization was concerned by paragraph
(c)(2)(iii) which requires that the letter requesting the fee waiver
specify the location in which the alien(s) will be providing charitable
services. Many religious organizations have widespread service
locations and the commenter suggested that the sponsoring agency should
determine when or where the alien(s) would be performing the charitable
acts. The regulation merely requires that determination to have been
made and stated in the application.
The Department must interpret the law, with respect to the issuance
or refusal of visas, with due respect not only to the letter and intent
of the provision but also to the practicalities involved. These
practicalities include both placing the least burdensome impact
possible on the beneficiary and providing the most effective, least
bureaucratic methods to ensure that the law not be abused.
The Department does not believe that this particular commenting
organization would take advantage of any loosening of the regulatory
language. Nonetheless, experience dictates that attempted fraud and
misrepresentation are and always have been rampant with respect to
entry into the United States. The statute in this case is clear:
``Subject to such criteria as the Secretary of State may prescribe, * *
* for any alien coming to the United States primarily for, or in
activities related to, a charitable purpose involving health or nursing
care, the provision of food or housing, job training, or any other
similar direct service or assistance to poor or otherwise needy
individuals * * *'' (emphasis supplied). The regulation set forth on
May 1 requires only the assertion of verifiable data regarding the
specific charitable purpose for which the alien intends to enter the
United States as a nonimmigrant. In the absence of both a location and
a proposed duration of stay which are clearly related to the charitable
purpose for which the alien seeks to enter, compliance with the
statutory requirement could not be verified at the time of application.
Therefore, the interim regulation becomes a final rule with one
amendment as noted above.
List of Subjects in 22 CFR Part 41
Aliens, Nonimmigrants, Passports and visas.
In view of the foregoing, the interim rule amending 22 CFR part 41
which was published at 63 FR 24107 on May 1, 1998, is adopted as a
final rule with the following change:
PART 41--[AMENDED]
1. The authority citation for part 41 continues to read as follows:
Authority: 8 U.S.C. 1104.
2. Section 41.107(c)(2)(i) is amended to read as follows:
Sec. 41.107 Visa fees
* * * * *
(i) The organization seeking relief from the fees is, if based in
the United States, tax-exempt as a charitable organization under the
provisions of section 501(c)(3) of the Internal Revenue Code (26 U.S.C.
501(c)(3)); if a foreign organization based outside the United States
in a country having laws according recognition to charitable
institutions, that it establishes that it is recognized as a charitable
institution by that government; and if a foreign organization based in
a country without such laws, that it is engaged in activities
substantially similar to those underlying section 501(c)(3), and
* * * * *
Dated: September 8, 1998.
Mary A. Ryan,
Assistant Secretary for Consular Affairs.
[FR Doc. 98-26383 Filed 10-1-98; 8:45 am]
BILLING CODE 4710-06-P
