98-8921. Regulations Pertaining to Both Nonimmigrants and Immigrants Under the Immigration and Nationality Act, as Amended; Failure to Comply With INA

[Federal Register Volume 63, Number 65 (Monday, April 6, 1998)]
[Rules and Regulations]
[Page 16686]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-8921]



[[Page 16686]]

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DEPARTMENT OF STATE

22 CFR Part 40

[Public Notice 2785]


Regulations Pertaining to Both Nonimmigrants and Immigrants Under 
the Immigration and Nationality Act, as Amended; Failure to Comply With 
INA

AGENCY: Bureau of Consular Affairs, State.

ACTION: Final rule.

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SUMMARY: The Department is removing the regulation that implemented 
section 212(o) of the Immigration and Nationality Act (INA) (8 U.S.C. 
1182(o)). Congress allowed INA 212(o) to sunset as of September 30, 
1997. This section, which prohibits the issuance of an immigrant visa 
to an alien within ninety days following an alien's departure from the 
U.S. if the alien was not in lawful nonimmigrant status at the time of 
departure, was intended to encourage adjustment of status applications 
under INA 245(i).

EFFECTIVE DATE: April 6, 1998.

FOR FURTHER INFORMATION CONTACT: H. Edward Odom, Chief, Legislation and 
Regulations Division, 202-663-1203.

SUPPLEMENTARY INFORMATION: On October 11, 1994, the Department 
published an interim rule [59 FR 51367] to implement section 506(b) of 
Pub. L. 103-317. This section amended INA 245 to permit qualified 
immigrants to acquire permanent residence through adjustment of status 
in the United States even though they entered the United States without 
inspection or violated their nonimmigrant status after entry. The Act 
further amended INA 212 by adding subsection ``(o)'', which encouraged 
eligible aliens to take advantage of the broadened INA 245 adjustment 
of status provisions by discouraging them from seeking immigrant visa 
issuance from a U.S. consular post abroad. To induce such aliens to 
seek adjustment of status rather than visas, Congress imposed a 
requirement that an immigrant visa applicant be physically absent from 
the United States for ninety days before an immigrant visa could be 
issued. Under that amendment, an alien who did depart from the United 
States would not be eligible to receive an immigrant visa before the 
91st day following the departure. The Department finalized this rule in 
a publication on March 8, 1996 [61 FR 9325].

Final Rule

    This final rule removes the Department's regulation at Sec. 40.204 
(formerly Sec. 40.104). It is being promulgated as a final rule without 
public notice and comment based on the exception found at 5 U.S.C. 
553(B) since the Department hereby determines that public notice is 
unnecessary and contrary to the public interest because the regulation 
eliminated no longer has a statutory basis.

The Regulatory Flexibility Act

    Pursuant to section 605(b) of the Regulatory Flexibility Act, the 
Department has assessed the potential impact of this rule and it has 
been determined, and the Assistant Secretary for Consular Affairs 
hereby certifies, that it will not have a significant economic impact 
on a substantial number of small entities. The rule has no economic 
effect independent of the statutory requirements already in effect, 
which it implements.

5 U.S.C. Chapter 8

    As required by 5 U.S. C. chapter 8, the Department has screened 
this rule and determined that it is not a major rule, as defined in 5 
U.S.C. 80412.

Paperwork Reduction Act

    This rule imposes no reporting or record-keeping action on the 
public requiring the approval of the Office of Management and Budget 
under the Paperwork Reduction Act.

E.O. 12988 and E.O. 12866

    This rule has been reviewed as required by E.O. 12988 and 
determined to meet the applicable regulatory standards it describes. 
Although exempted from E.O. 12866, this rule has been reviewed to 
ensure consistency with it.

List of Subjects in 22 CFR Part 40 Aliens, Immigration, Passports 
and Visas

PART 40--[AMENDED]

    1. The authority citation for Part 40 continues to read as follows:

    Authority: 8 U.S.C. 1104.


Sec. 40.204  [Removed and Reserved]

    2 Remove and reserve Sec. 40.204.

    Dated: March 26, 1998.
Mary A. Ryan,
Assistant Secretary for Consular Affairs.
[FR Doc. 98-8921 Filed 4-3-98; 8:45 am]
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