E6-10270. Visas: Documentation of Nonimmigrants Under the Immigration and Nationality Act, as Amended

AGENCY:

State Department.

ACTION:

Final rule.

SUMMARY:

This rule expands guidance to consular offices for the review of nonimmigrant visa issuances and refusals contained at 22 CFR 41.113(i) (new) and 22 CFR 41.121(c), respectively, to specify who should conduct the reviews, the types of cases to be reviewed, and the goals of the reviews.

DATES:

Effective Date: This rule is effective on June 30, 2006.

FOR FURTHER INFORMATION CONTACT:

Charles E. Robertson, Legislation and Regulations Division, Visa Services, Department of State, Washington, DC 20520-0106. Phone: [phone]. E-mail: [e-mail].

SUPPLEMENTARY INFORMATION:

Why Is the Department Promulgating These Rules?

Nonimmigrant visa refusals and issuances are generally committed by law to the adjudicating consular officer. The Department nevertheless provides for them to be reviewed by consular experts in a supervisory capacity. Such reviews are a significant management and instructional tool useful in maintaining the highest professional standards of adjudication and ensuring uniform and correct application of the law and regulations. The purpose of this rule revision is to expand the scope of reviews of nonimmigrant visa applications to ensure that Department supervisors are reviewing both issuances and refusals to the greatest extent practicable, while balancing workload considerations at consular posts.

Why Has the Department Imposed a Review of Applications of Nonimmigrant Issuances?

Current regulations require that the section chief or designee review all visa refusals. The Foreign Affairs Manual (FAM) calls for a spot check of NIV issuances. In order to enhance U.S. border security, we are placing greater emphasis on reviewing issuances to ensure that visas are issued in compliance with law and procedures. This rule revision will provide a regulatory framework for a regular and targeted review of both visa issuances and refusals.

Why Has the Department Reduced the Degree of Review of Refusals?

Due to the need to formalize our review of visa issuances beyond spot checks in order to promote border security, it will no longer be possible to review all visa refusals. We will continue to review refusals to ensure appropriate adjudication standards are maintained, while striking the appropriate balance between resources and essential functions.

Who Will Review the Applications?

The reviewing officer will be the adjudicating consular officer's direct supervisor, or a designated alternate. If the reviewing officer disagrees with the consular officer's decision, and he or she has a consular commission and title, the reviewing officer can assume responsibility for the case and readjudicate it. If the reviewing officer does not have a consular commission and title, he or she must consult with the adjudicating officer, or with the Visa Office, to resolve any disagreement. The Department's regulation at 22 CFR 41.121(c) specifies that a refusal must be reviewed without delay; that is, on the day of the refusal or as soon as is administratively possible. This rule will be applied to review of visa issuances as well.

Regulatory Findings

Administrative Procedure Act

The Department's implementation of 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. 553.

Regulatory Flexibility Act/Executive Order 13272: Small Business

This rule is not subject to the notice-and-comment rulemaking provisions of the Administrative Procedure Act or any other act, and, accordingly it does not require analysis under the Regulatory Flexibility Act (5 U.S.C. 601, et seq.) and Executive Order 13272, section 3(b).

The 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, Public Law No. 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.

The Unfunded Mandates Reform Act of 1995

This rule is not subject to the notice-and-comment rulemaking provisions of the Administrative Procedure Act or any other act, and, accordingly it does not require analysis under the Unfunded Mandates Reform Act of 1995 (Pub. L. No. 104-4). Moreover, this rule is not expected to result in an annual expenditure of $100 million or more by State, local, or tribal governments, or by the private sector. Nor will it significantly or uniquely affect small governments.

Executive Orders 12372 and 13132: Federalism

The Department finds that 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 does the rule have federalism implications warranting the application of Executive Orders No. 12372 and No. 13132.

Executive Order 12866: Regulatory Review

The Department does not consider this rule to be a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review. In addition, the Department is exempt from Executive Order 12866 except to the extent that it is promulgating regulations in conjunction with a domestic agency that are significant regulatory actions. The Department has nevertheless reviewed the regulation to ensure its consistency with the regulatory philosophy and principles set forth in this Executive Order.

Executive Order 12988: Civil Justice Reform

The Department has reviewed the regulations in light of sections 3(a) and 3(b)(2) of Executive Order No. 12988 to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burden.

The Paperwork Reduction Act of 1995

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

• Aliens
• Foreign officials
• Immigration
• Nonimmigrants
• Passports and visas
• Students

For the reasons stated in the preamble, the Department of State amends 22 CFR part 41 as follows:

PART 41—[AMENDED]

1. The authority citation for part 41 shall continue to read as follows:

Authority: 8 U.S.C. 1104; Public Law No. 105-277, 112 Stat. 2681-795 through 2681-801. Additional authority is derived from Section 104 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) Public Law 104-208, 110 Stat. 3546.

2. In § 41.113, add paragraph (i) to read as follows:

§ 41.113

Procedures in issuing visas.

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(i) Nonimmigrant visa refusals must be reviewed, in accordance with guidance by the Secretary of State, by consular supervisors, or a designated alternate, to ensure compliance with applicable laws and procedures. Visa issuances must be reviewed without delay; that is, on the day of issuance or as soon as is administratively possible. If the reviewing officer disagrees with the decision and he or she has a consular commission and title, the reviewing officer may assume responsibility and readjudicate the case. If the reviewing officer does not have a consular commission and title, he or she must consult with the adjudicating officer, or with the Visa Office, to resolve any disagreement.

3. In § 41.121, revise paragraph (c) to read as follows:

§ 41.121

Refusal of individual visas.

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(c) Nonimmigrant visa issuances must be reviewed, in accordance with guidance by the Secretary of State, by consular supervisors, or a designated alternate, to ensure compliance with laws and procedures. If the ground(s) of ineligibility upon which the visa was refused cannot be overcome by the presentation of additional evidence, the refusal must be reviewed without delay; that is, on the day of the refusal or as soon as it is administratively possible. If the ground(s) of ineligibility may be overcome by the presentation of additional evidence, and the applicant has indicated the intention to submit such evidence, a review of the refusal may be deferred for not more than 120 days. If the reviewing officer disagrees with the decision and he or she has a consular commission and title, the reviewing officer can assume responsibility and readjudicate the case. If the reviewing officer does not have a consular commission and title, he or she must consult with the adjudicating officer, or with the Visa Office, to resolve any disagreement.

* * * * *

Dated: June 16, 2006.

Maura Harty,

Assistant Secretary for Consular Affairs, Department of State.