01-15050. Visas: Documentation of Immigrants and Nonimmigrants-Visa Classification Symbols

AGENCY:

Bureau of Consular Affairs, Department of State.

ACTION:

Final rule.

SUMMARY:

The Department is amending its regulations to add new immigrant and nonimmigrant symbols to the classification tables. The amendments are necessary to implement recently enacted legislation. The legislation created a new immigrant category for certain international broadcasters (BC1, BC2, and BC3) and new nonimmigrant categories for victims of trafficking for illicit sexual purposes and slavery (T1 and T2), aliens who have suffered abuse such as battering and other forms of violence (U1 and U2), spouses and children of lawful permanent residents for whom petitions were filed before December 21, 2000 and who have been waiting for an immigrant visa for three years or more (V1, V2, and V3), and spouses of U.S. citizens (K3) and children of the K3 (K4) who are awaiting the issuance of an immigrant visa (K3, K4). This rule removes the immigrant classification for diversity transition natives (AA1, AA2 and AA3). This program ended September 30, 1995. The Department is also taking this opportunity to amend the classification symbols for retired NATO-6 employees, their spouses and their unmarried sons and daughters. In the Department's publication on April 19, 2000 [65 FR 20903], the Department erroneously classified these aliens as SK special immigrants. These aliens should be classified as SN1, SN2, SN3 and SN4.

DATES:

This rule takes effect on June 18, 2001.

FOR FURTHER INFORMATION CONTACT:

Pam Chavez, Legislation and Regulations Division, Visa Services, Department of State, Washington, DC 20520-0106, [phone].

SUPPLEMENTARY INFORMATION:

What Legislation Created These New Visa Categories?

Pub. L. 106-386, The Victims of Trafficking and Violence Protection Act of 2000 (VTVPA)

The VTVPA is actually two separate laws, the “Trafficking Victims Protection Act of 2000” (TVPA) and the “Violence Against Women Act of 2000” (VAWA2).

How Does an Alien Qualify for T Visa Status Under the TVPA?

Section 107 of Division A of the TVPA created a new nonimmigrant category under INA 101(a)(15)(T) for aliens who the Attorney General has determined are victims of a “severe form of trafficking in persons.” Section 103 of the TVPA defines a “severe form of trafficking in persons” as either:

(1) sex trafficking in which a commercial sex act is induced by force, fraud or coercion or in which the person induced to perform such act has not attained 18 years of age, or

(2) the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery.

To qualify for the “T” category, the person must

(1) Be physically present in the United States, American Samoa, the Commonwealth of the Northern Mariana Islands, or a U.S. port of entry because of such trafficking;

(2) Have complied with any reasonable request for assistance to law enforcement in the investigation or prosecution of acts of trafficking, or be under the age of 15; and

(3) Be likely to suffer extreme hardship involving unusual and severe harm upon removal.

The Attorney General may, in order to avoid extreme hardship, permit the spouse, children and parents of an alien under age 21 and the spouse and children of an alien over age 21 to accompany or follow to join the principal alien.

How Does an Alien Qualify for U Visa Status Under the VAWA2?

Section 1513 of Division B of the VAWA2 created a new category under INA 101(a)(15)(U) for victims of physical or mental abuse. To qualify under the U category the alien must file a petition with the Attorney General and establish therein:

(1) The alien has suffered substantial physical or mental abuse as a result of having been a victim of any one of an extensive list of 26 criminal activities, including rape, torture, domestic abuse, enslavement prostitution, etc.;

(2) As certified by a law enforcement or immigration official, the alien (or if the alien is a child under age 16 the child's parent, guardian or friend) possesses information about the criminal activity involved;

(3) The alien has been, is being or is likely to be helpful in the investigation and prosecution of the criminal activity by Federal, state or local law enforcement authorities; and,

(4) The criminal activity violated the laws of the United States or occurred in the United States.

If the Attorney General determines that extreme hardship exists and a law enforcement official certifies that an investigation or prosecution would be harmed without that person's assistance, the spouse, child or parents of the principal alien under age 16 may accompany or follow to join the principal alien.

The U category is limited to 10,000 principal aliens per fiscal year.

Pub. L. 106-553, Legal Immigration Family Equity Act (LIFE ACT)

The LIFE ACT creates new nonimmigrant categories under INA 101(a)(15)(V) and adds a new category under INA 101(a)(15)(K).

An alien may be classified as a V nonimmigrant if the alien is:

(1) The spouse or child of a lawful permanent resident;

(2) Is the beneficiary of an approved petition filed under INA 204 prior to December 21, 2000; and

(3) Has been waiting for three or more years after filing the petition for the issuance of an immigrant visa.

An alien may be granted K status if the alien:

(1) Is the spouse of a U.S. citizen petitioner or the child of such spouse; and

(2) Is waiting for the approval of a petition or the availability of an immigrant visa.

Pub. L. 106-536, Special Immigrant Status for Certain U.S. Broadcasters

Pub. L. 106-536 created a new immigrant category (BC) under INA 101(a)(27)(M) for certain United States international broadcasting employees. To qualify as a special immigrant broadcaster, the alien must be:

(1) Seeking to enter the United States to work as a broadcaster in the United States for the International Broadcasting Bureau of the Broadcasting Board of Governors, or

(2) Seeking to enter the United States to work for a grantee of the Broadcasting Board of Governors, or

(3) The accompanying spouse and child of the principal alien. The law limits the number of aliens granted visas in this category to 100 in any fiscal year.

Why Is the Department Removing the Diversity Transition Natives?

Section 132 of Pub. L. 104-296 established a class of immigrants (AA) to be issued immigrant visas in fiscal years 1992, 1993 and 1994. Section 217 of Pub. L. 104-316 extended this program through September 30, 1995. The Department is removing the diversity transition natives (AA-1, AA-2, and AA-3) since this category of immigrants no longer exists.

How Is the Department Amending Its Regulations?

Effect on Nonimmigrant Visa Table Affected?

The rule amends the nonimmigrant visa classification table at 22 CFR 41.12 by adding new classifications: T1 and T2; U1 and U2, V1, V2 and V3, and K3 and K4.

Effect on Immigrant Visa Table Affected?

The rule amends the immigrant visa classification table at 22 CFR 42.11 by adding three new classifications: BC1, BC2 and BC3. The rule removes the classification symbols AA1, AA2 and AA3. The rule also corrects the classification symbols for certain retired civilian employees of NATO and the spouses and unmarried sons and daughters and certain retired and deceased NATO employees. These aliens were erroneously classified as SK special immigrants and should have been classified as SN1, SN2, SN3 and SN4.

Final Rule

Administrative Procedure Act

The Department's implementation of this regulation as a final rule is based upon the

“good cause” exceptions found at 5 U.S.C. 553(b)(B) and (d)(3). The Department decided that since the new nonimmigrant and special immigrant categories became effective upon enactment of the respective laws and since there is a substantial immediate benefit to many aliens, citizens and lawful permanent residents, there is not enough time nor sufficient reason to delay its implementation by issuing a proposed rule with request for comments.

Regulatory Flexibility Act

The Department of State, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving it, certifies that this rule will not 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 or more 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

Although it is being promulgated in conjunction with the Immigration and Naturalization Service, a domestic agency, 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. 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 warrant the preparation of a federalism summary impact statement.

Paperwork Reduction Act

This rule does not impose any new reporting or record-keeping requirements.

The information collection requirement (Form OF-156) contained by reference in this rule was previously approved for use by the Office of Management and Budget (OMB) under the Paperwork Reduction Act.

List of Subjects in 22 CFR Part 41

• Aliens
• Foreign officials
• Passports and visas

PART 41—[AMENDED]

1. The authority citation for Part 41 is revised to read:

Authority: 8 U.S.C. 1104; 22 U.S.C. 2651a.

2. Amend the table in § 41.12 by adding new categories K3 and K4, T1, and T2, U-1, and U2, V1, V2 and V3, in alpha-numeric order.

3. The addition reads as follows:

§ 41.12

Classification symbols.

* * * * *

Nonimmigrants

Symbol and class	Section of law
*         *         *         *         *         *         *
K3 Spouse of U.S. citizen	101(a)(15)(K)(ii)
K4 Child of a K3	101(a)(15)(K)(iii)
*         *         *         *         *         *         *
T1 Victim of a severe form of trafficking in persons	101(a)(15)(T)(i)
T2 Spouse, child or parent of a T1	101(a)(15)(T)(ii)
*         *         *         *         *         *         *
U1 Victim of criminal activity	101(a)(15)(i)(I)
U2 Spouse, child or parent of a U1	101(a)(15)(ii)
V1 Spouse of a Legal Permanent Resident Alien	101(a)(15)(V)(i)
V2 Child of a Legal Permanent Resident Alien	101(a)(15)(V)(i)
V3 Child of a V1 or V2	203(d)

PART 42—[AMENDED]

4. The authority citation for Part 42 is revised to read as follows:

Authority: 8 U.S.C. 1104; 2651a.

5. Amend § 42.11 by adding in alpha-numeric order new categories BC1, BC2 and BC3 under the section entitled “Employment 4th Preference”; by adding in alpha-numeric order new categories SN1, SN2, SN3 and SN4, under the section entitled “Employment 4th Preference”; and by removing the section heading “Diversity Transition for Natives of Certain Adversely Affected Foreign States” and the 3-column entries for AA1, AA2 and AA3.

The additions read as follows:

§ 42.11

Classification symbols.

* * * * *

Immigrants

Symbol and class	Section of law
*         *         *         *         *         *         *
Employment 4th Preference (Certain Special Immigrants)
BC1 Broadcaster in the U.S. employed by the International Broadcasting Bureau of the Broadcasting Board of Governors or a grantee of such organization	101(a)(27)(M)
BC2 Accompanying spouse of a BC1	101(a)(27)(M)
BC3 Accompanying child of a BC1	101(a)(27)(M)
*         *         *         *         *         *         *
SN1 Certain retired NATO6 civilians	101(a)(27)(L)
SN2 Spouse of an immigrant classified SN1	101(a)(27)(L)
SN3 Certain unmarried sons or daughters of NATO6 civilian employees	101(a)(27)(L)
SN4 Certain surviving spouses of deceased NATO-6 civilian employees	101(a)(27)(L)
*         *         *         *         *         *         *

Dated: April 10, 2001.

Mary A. Ryan,

Assistant Secretary for Consular Affairs, Department of State.