[Federal Register Volume 60, Number 26 (Wednesday, February 8, 1995)]
[Rules and Regulations]
[Pages 7443-7446]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-3004]
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DEPARTMENT OF STATE
Bureau of Consular Affairs
22 CFR Part 43
[Public Notice 2163]
Visas: Documentation of Immigrants Under Section 132 of Public
Law 101-649, as Amended
AGENCY: Bureau of Consular Affairs, Department of State.
ACTION: Interim rule, with request for comments.
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SUMMARY: Pub. L. 103-416, the Act of October 25, 1994, the Immigration
and Nationality Technical Corrections Act of 1994, further amends
section 132 of Public Law 101-649 to authorize the issuance during
Fiscal Year 1995 of those immigrant visas authorized during the three
fiscal years of the Transitional Diversity Program but not used during
that period. The amendments became effective upon signature and the
available visas are to be issued during the Fiscal Year now in
progress. Accordingly, the Department is promulgating an interim rule
in order to create a basis for initiating the necessary processing and
inviting comments.
DATES: This rule is effective February 8, 1995. Interested persons are
invited to [[Page 7444]] submit written comments on or before March 10,
1995.
ADDRESSES: Written comments, with a reference to this rule to ensure
proper and timely handling, may be submitted in duplicate to the
Director, Office of Legislation, Regulations, and Advisory Assistance,
Visa Office, Department of State, Washington, DC, 20522-0113.
FOR FURTHER INFORMATION CONTACT: Cornelius D. Scully, III, Director,
Office of Legislation, Regulations, and Advisory Assistance, Bureau of
Consular Affairs, (202) 663-1184.
SUPPLEMENTARY INFORMATION:
General
Section 217 of Pub. L. 103-416 amends section 132 of Pub. L. 101-
649 to extend the life of the provision through fiscal year 1995.
Section 132 provided for the issuance of specified amounts of immigrant
visas during fiscal years 1992, 1993, and 1994. This program came to be
known as the AA-1 program, from the entry code used by INS to identify
for statistical purposes admissions of aliens who qualified under the
program. Natives of specified countries were authorized to compete for
consideration during each of the three years by applying during an
application period established for each of the years. The annual
limitation was set at 40,000 with not less than 40%--16,000--reserved
for natives of Ireland.
Section 132 was amended to modify the provision in several respects
for the second and third years. Pertinent here were amendments which
authorized the total of visas unused in the first or second fiscal year
to be added to the total for the second or third year, as applicable,
and which authorized the total reserved for natives of Ireland to be
increased in the second and third years by the shortfall in usage by
natives of Ireland in the preceding year.
Section 217 of Pub. L. 103-416 further extends this program but
does so in a very limited way. First, the numerical limitation for
fiscal year 1995 is established as solely the total of immigrant visas
unused in the program during fiscal year 1994. There is no new annual
limitation of 40,000.
Second, aliens entitled to compete for the available visas will be
limited to those who are natives of countries qualified under this
program who also have applied for consideration under the new Diversity
Lottery provided for in section 203(c) of the Immigration and
Nationality Act, as amended, and in section 42.33 of Title 22, United
States Code. There will be no new mail-in period to allow aliens to
apply to compete for the visas available under this extension.
Finally, aliens entitled to compete for the AA-1 program numbers
available during fiscal year 1995 will not have to present evidence of
a firm commitment for employment in the U.S., but will be subject to
the requirement established by section 203(c)(2) for applicants under
the Diversity Lottery--a showing that they have at least a high school
education or its equivalent or that, within the preceding five years,
they have had at least two years of work experience in an occupation
requiring at least two years of training or experience.
Numerical Limitation and Its Apportionment
As pointed out above, the numerical limitation for fiscal year 1995
is limited to the number of immigrant visas which were available during
the previous fiscal years but not used during those years. The total
unused was 1,404. Thus, during fiscal year 1995 1,404 visas will be
available to natives of qualifying countries.
Now, the apportionment of that total is interesting. Section 132(c)
specifies that a minimum of 40 percent of a fiscal year limitation
shall be made available to natives of the foreign state which received
the greatest number of visas under the program established by section
314 of the Immigration Reform and Control Act. That same section, as
amended, also provides that, if usage of visas by natives of that
foreign state falls short of the total available in a fiscal year, the
amount of shortfall is to be added to the 40 percent minimum during the
next fiscal year.
The foreign state so described was Ireland. Application of the
above rules to the available numbers produces the following results--
40 percent of 1404=562 (rounded to the nearest whole number)
Visas reserved for natives of Ireland, FY 94--22,555
Visas actually used by natives of Ireland, FY 94--21,804
Shortfall for FY 94--751
Visas available for natives of Ireland, FY 95--562+751=1,313
Visas available for natives of other qualifying countries--91.
Section 217 also provides that any visas available to natives of
countries other than Ireland are to be distributed among the regions
established under the Diversity Lottery in proportion to the usage by
region of visas under the AA-1 program during fiscal years 1992 and
1993. Regionally, the usage during the two fiscal years cited was
distributed as follows:
Europe--85.93%
Asia--11.51%
South America, Mexico, Central America, and the Caribbean--2.02%
Africa--0.54%
It will be noted that two of the six regions established for
Diversity Lottery purposes are not listed above--North America and
Oceania. No countries in the Oceania region qualified for participation
in the AA-1 program and, thus, usage of visas by natives of countries
in that region was necessarily zero.
The omission of North America has a different basis. The only two
countries in the region are Canada and the Bahamas. Canada was a
country which qualified for the AA-1 program in fiscal year 1993,
although not in fiscal year 1992. On the other hand, Canada does not
qualify for participation in the DV-1 lottery and, thus, the Bahamas is
the only country in the North America Region which does qualify. The
Bahamas was not, however, a country which qualified to participate in
the AA-1 program. For this reason, natives of the Bahamas who applied
for the DV-1 lottery could not be issued AA-1 visas under this carry-
over provision. Accordingly, the Department did not take into account
usage by North America in determining how to apportion the 91 visas
available for natives of AA-1 countries other than Ireland.
Apportioning the 91 visas among the four regions in accordance with
the percentages indicated above produces the following numbers--
Europe--78
Asia--10
South America, Mexico, Central America, and the Caribbean--2
Africa--1
Selection of Immigrants
Small as the numbers of visas available under this provision are,
the question of how to select recipients has been troublesome. Section
217 itself prohibits any separate mail-in to compete for these visas
and requires that recipients be selected from among those who applied
to compete for selection in the fiscal year 1995 Diversity Lottery. By
the time section 217 was enacted, the mail-in period for that lottery
was complete, the computer-generated random selection had been made and
notifications had been sent to the winners. The Department's decision
as to how to handle selection of the recipients of these visas has been
heavily influenced by that fact.
First, as to non-Irish competitors for these visas, the number of
registrants for [[Page 7445]] the Diversity Lottery is so large
compared to the visas available that it will not be necessary to go
beyond those already registered and notified of their qualification to
compete in the Diversity Lottery. The Department envisions that the
visas available for each region will be made available according to
regional rank order numbers to natives of AA-1 qualifying countries who
are determined to be ineligible to receive a DV-1 visa under section
212(a)(6)(C) or 212(e), or who could not obtain a DV-1 visa because of
the regional or percentage limitation.
The situation regarding Irish Diversity Lottery applicants is
rather different. The number of aliens registered for the Diversity
Lottery who could compete for the 1,313 Irish visas is only 2,416--
2,151 from the Republic of Ireland; 265 from Northern Ireland. [In the
AA-1 program, Northern Ireland was required by law to be treated as
part of Ireland. In the Diversity Program, Northern Ireland is required
by law to be treated as a separate foreign state.] Given the very high
percentage of natives of Ireland who were registered for visas under
the AA-1 program but failed to pursue their applications, the
Department believes that it is necessary to register additional Irish
applicants beyond those registered for the DV-1 program for the express
purpose of producing a pool of Irish applicants sufficient to ensure
use of all the AA-1 visa numbers carried over from the previous fiscal
years.
Accordingly, the Department is registering an additional quantity
of natives of Ireland beyond those registered for competition for the
Diversity visas. These applicants will not compete for Diversity visas
as their rank order numbers will not justify permitting them to do so.
They will, however, compete for the 1,313 AA-1 visas carried over to
the current fiscal year.
Interim Rule
The implementation of this rule, with provision for post-
promulgation public comments, is based upon the ``good cause''
exception found at 5 U.S.C. 553 (b)(B) and 553(d)(3). The amendments
authorizing the Department to continue issuing visas under the
Transitional Diversity Program throughout fiscal year 1995 took effect
October 25, 1994.
This rule is not expected to have a significant impact on a
substantial number of small entities under the criteria of the
Regulatory Flexibility Act. In addition, this rule would not impose
information collection requirements under the provisions of the
Paperwork Reduction Act of 1980. This rule has been reviewed as
required under E.O. 12778 and certified to be in compliance therewith.
This rule is exempt from review under E.O. 12866, but has been reviewed
internally by the Department to ensure consistency with the objectives
thereof.
List of Subjects in 22 CFR Part 43
Aliens, Immigrants, Numerical limitations, Registration, Visas.
Accordingly, title 22, part 43 of the Code of Federal Regulations,
is amended as follows:
PART 43--[AMENDED]
1. The authority citation for part 43 is revised to read:
Authority: 8 U.S.C. 1104; 8 U.S.C. 1153 note, 108 Stat. 4315.
2. Part 43 is amended by adding a new subpart C to read as follows:
Subpart C--Documentation of Immigrants Under Section 217 of Public Law
103-416
Sec.
43.21 General.
43.22 Definitions.
43.23 Eligibility for consideration.
43.24 Order of consideration.
43.25 Numerical limitations.
43.26 Fees.
43.27 Eligibility to receive a visa.
Sec. 43.21 General.
Except as specifically provided in this subpart, the provisions of
the Immigration and Nationality Act, as amended, and of parts 40 and 42
of this chapter shall apply to application for, consideration of, and
issuance or refusal of, immigrant visas under section 217 of Pub. L.
103-416.
Sec. 43.22 Definitions.
The definitions set forth in paragraphs (a), (c) and (d) of
Sec. 43.12 shall apply to application for, consideration of, and
issuance or refusal of, immigrant visas under section 217 of Pub. L.
103-416.
Sec. 43.23 Eligibility for consideration.
(a) Natives of adversely affected foreign states other than
Ireland. Natives of adversely affected foreign states other than
Ireland shall be eligible for consideration for issuance of a visa
under this subpart only if they have been registered for consideration
for issuance of a visa during fiscal year 1995 under section 203(c) of
the Immigration and Nationality Act, as amended.
(b) Natives of Ireland. Natives of Ireland, as that country is
defined in Sec. 43.12(d) shall be eligible for consideration for
issuance of a visa under this 103-416.
(1) They have been registered for consideration for issuance of a
visa under section 203(c) of the Immigration and Nationality Act, as
amended; or
(2) They have been separately registered for this purpose from
among those natives of Ireland who petitioned for consideration under
section 203(c) of the Immigration and Nationality Act, as amended, but
were not selected under the procedures established under Sec. 42.33.
Sec. 43.24 Order of consideration.
(a) Natives of Ireland. Consideration for issuance of a visa under
this subpart shall be given to natives of Ireland in order of diversity
rank number whose application for a visa under section 203(c) of the
Immigration and Nationality Act, as amended, has been refused under
section 212(a)(6)(C) or 212(e) of such Act, or both, or whose
application could not be processed to a conclusion because of the
applicable regional or foreign state limitation. Such consideration
shall thereafter be given to natives of Ireland separately registered
for this purpose as provided in Sec. 43.23(b)(2) and such consideration
shall be given in the rank order established by such registration.
(b) Natives of adversely affected countries other than Ireland.
Consideration for issuance of a visa under this subpart shall be given
to natives of adversely affected countries other than Ireland in order
of regional diversity rank number whose application for a visa under
section 203(c) of the Immigration and Nationality Act, as amended, has
been refused under section 212(a)(6)(C) or 212(e) of such Act, or both,
or whose application registered for consideration for issuance of a
visa under such section 203(c) could not be processed to a conclusion
because of the applicable regional or foreign state limitation.
Sec. 43.25. Numerical limitations.
(a) Centralized control. Centralized control of the numerical
limitations established pursuant to section 217 of Pub. L. 103-416 and
this subpart is established in the Department.
(b) Numerical limitation for natives of Ireland. The numerical
limitation for natives of Ireland shall be determined by multiplying by
0.40 the number of immigrant visas available under section 132 of Pub.
L. 101-649 during fiscal year 1994 to natives of adversely affected
countries which were not used by such natives and by adding to the
result of that calculation the number of visas available under such
section 132 during fiscal year 1994 to natives of Ireland which were
not used by such natives. [[Page 7446]]
(c) Numerical limitation for natives of adversely affected
countries other than Ireland.
(1) Overall. The overall numerical limitation for natives of
adversely affected countries other than Ireland shall be the difference
between the total number of visas available under section 132 of Pub.
L. 101-649 during fiscal year 1994 but not used during such fiscal year
and the number computed pursuant to paragraph (b) of this section.
(2) Regional apportionment. The overall numerical limitation
determined as provided in paragraph (c)(1) of this section shall be
apportioned among the regions established by section 203(c)(1)(F) of
the Immigration and Nationality Act, as amended, as follows--Africa:
0.54%; Asia: 11.51%; Europe: 85.93%; North America--none; Oceania:
None; and South America, Mexico, Central America, and the Caribbean;
2.02%.
(d) Allocation of immigrant visa numbers. Within the limitations
specified in paragraphs (b) and (c) of this section, the Department
shall allocate immigrant visa numbers for use in connection with the
issuance of immigrant visas and the granting of adjustment of status.
Sec. 43.26 Fees.
An applicant who is to be given consideration under this subpart
and who is notified or otherwise informed thereof shall remit to the
Department a fee of $25 in such manner as the Department shall specify
in the notification or other communication to the applicant. The fee
shall be $25 regardless of whether or not the applicant has a spouse
and/or child(ren) who intend to accompany or follow to join the
applicant. The remittance shall be negotiable in such form as the
Department shall specify.
Sec. 43.27 Eligibility to receive a visa.
The eligibility of an applicant for a visa under section 217 of
Pub. L 103-416 shall be determined as provided in the Immigration and
Nationality Act, as amended, and parts 40 and 42 of subchapter E-Visas
except that--
(a) Section 212(e) of the Immigration and Nationality Act, as
amended, shall not apply to such an applicant; and
(b) The provisions of Sec. 40.105 of this chapter shall apply to
such an applicant.
Dated: February 2, 1995.
Mary A. Ryan,
Assistant Secretary for Consular Affairs.
[FR Doc. 95-3004 Filed 2-7-95; 8:45 am]
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