E7-25417. Visas: Documentation of Non-immigrants Under the Immigration and Nationality Act

AGENCY:

Department of State.

ACTION:

Final rule.

SUMMARY:

This rule amends 22 CFR Part 41 in order to reflect increased security measures requiring fingerprinting and name checks of all visa applicants, with certain narrow exceptions, and to be consistent with an amendment to the Schedule of Fees for Consular Services including the cost of such checks in fees for non-immigrant and immigrant visas and border crossing cards.

DATES:

This final rule becomes effective January 1, 2008.

FOR FURTHER INFORMATION CONTACT:

Barbara J. Kennedy, Legislation and Regulations Division, Visa Services, Department of State; 2401 E Street, NW., Room L-603, Washington, DC 20520-0106, [phone], e-mail [e-mail].

SUPPLEMENTARY INFORMATION:

Background

What Is the Authority for This Action?

The Secretary of State is charged with the administration and enforcement of the provisions of the Immigration and Nationality Act (INA) and all other immigration and nationality laws relating to, inter alia, the powers, duties and functions of consular officers. 8 U.S.C. 1104. The Secretary is also authorized to establish regulations necessary for carrying out these duties. Id. In 2004, Congress found that existing procedures allowed many individuals to enter the United States showing only minimal identification and that greater security measures were necessary to protect the United States from terrorist attacks. Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA), Pub. L. 108-458 (Dec. 17, 2004), section 7209. In order to more effectively carry out its duties to administer and enforce the INA, and to respond to the congressional mandate in the IRTPA to increase the nation's border security, the Department has begun performing fingerprint and name checks on all visa applicants except those falling within a narrow range of exceptions. Fingerprints are now required of all visa applicants except those under 14 years of age or over 79 years of age, and certain diplomats and officials. The expansion of fingerprint and name checks to include the vast majority of visa applicants is a critical component of the Department's efforts to enhance the nation's border security.

Why is the Department Amending Part 41 at This Time?

The deletion of Part 22, section 41.105(b) is necessary at this time because the Department is conducting fingerprint checks and name checks on all visa applicants who do not fall within the exceptions noted above, and because beginning on January 1, 2008, the cost of such checks will be included in visa fees, including the fees for non-immigrant visas. In contrast, section 41.105(b) prescribes fingerprint and name checks of non-immigrant visa applicants only in certain circumstances, and provides that a fee for fingerprint checks will only be charged when a name check indicates the possibility of a criminal history. 22 CFR 41.105(b) should be deleted in order to ensure that the Department's regulations concerning fingerprint and name checks of non-immigrant visa applicants are consistent. In order to prevent any confusion as to when fingerprint and name checks are required of non-immigrant visa applicants and what fees for these services must be paid by visa applicants, the provision must be deleted effective January 1, 2008, simultaneously with the effective date of the amendment to the Schedule of Fees for Consular Services.

Regulatory Findings

Administrative Procedure Act

This regulation involves a foreign affairs function of the United States and, therefore, in accordance with 5 U.S.C. 553(a)(1), is not subject to the rule making procedures set forth at 5 U.S.C. 533.

Regulatory Flexibility Act/Executive Order 13272:

Small Business.

Because this final rule is exempt from notice and comment rulemaking under 5 U.S.C. 553, it is exempt from the regulatory flexibility analysis requirements set forth at sections 603 and 604 of the Regulatory Flexibility Act (5 U.S.C. 603 and 604). Nonetheless, consistent with section 605(b) of the Regulatory Flexibility Act (5 U.S.C. 605(b)), the Department certifies that this rule will not have a significant economic impact on a substantial number of small entities.

The Unfunded Mandates Reform Act of 1995

Section 202 of the Unfunded Mandates Reform Act of 1995 (UFMA), Pub. L. 104-4, 109 Stat. 48, 2 U.S.C. 1532, generally requires agencies to prepare a statement before proposing any rule that may result in an annual expenditure of $100 million or more by State, local, or tribal governments, or by the private sector. This rule will not result in any such expenditure, nor will it significantly or uniquely affect small governments.

Small Business Regulatory Enforcement Fairness Act of 1996

This rule is not a major rule as defined by 5 U.S.C. 804, for purposes of congressional review of agency rulemaking under the Small Business Regulatory Enforcement Fairness Act of 1996, Pub. L. 104-121. 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 adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based companies to compete with foreign based companies in domestic and import markets.

Executive Order 12866

The Department of State does not consider this rule to be a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review. In addition, this rule is exempt from review under E.O. 12866. The Department has nevertheless reviewed it to ensure its consistency with the regulatory philosophy and principles set forth in that Executive Order.

Executive Orders 12372 and 13132: Federalism

This regulation will not have substantial direct effects on the States, on the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government. Nor will the rule have federalism implications warranting the application of Executive Orders No. 12372 and No. 13132.

Paperwork Reduction Act

This rule does not impose information collection requirements under the provisions of the Paperwork Reduction Act, 44 U.S.C., Chapter 35.

List of Subjects in 22 CFR Part 41

• Visas
• Nonimmigrants
• Passports and Visas
• Fees
• Surcharge

Accordingly, 22 CFR part 41 is amended as follows:

PART 41—[AMENDED]

1. The authority citation for Part 41 continues to read as follows:

Authority: 8 U.S.C. 1104; Pub. L. 105-277, 112 Stat. 2681-795 through 2681-801; 8 U.S.C. 1185 note (section 7209 of Pub. L. 108-458).

2. Section 41.105 is amended by removing paragraph (b).

Dated: December 21, 2007.

Maura Harty,

Assistant Secretary for Consular Affairs, Department of State.