01-18913. Visas: Documentation of Immigrants Under the Immigration and Nationality Act, as Amended-Diversity Visas

AGENCY:

Bureau of Consular Affairs, Department of State.

ACTION:

Interim Rule with Request for Comments.

SUMMARY:

This document makes certain amendments to the regulations implementing the Diversity Immigrant (DV) Program (the Program). The Department feels the amendments are necessary to further clarify its interpretation of the statute with respect to the Program and to enhance the Department's ability to combat fraudulent practices in the DV Program. The Department is also amending the Program regulations as they pertain to the use of the “Dictionary of Occupational Titles” to determine the required work experience since this document is no longer current. Consular officers will now make determinations regarding work experience based upon the U.S. Department of Labor's O*Net OnLine.

DATES:

Effective date: This rule takes effect on August 30, 2001.

Comment date: Written comments must be received before August 30, 2001.

ADDRESSES:

Interested persons are invited to submit comments in duplicate to: Chief, Office of Legislation and Regulations, Visa Office, Department of State, Washington, DC, 20520-0106, by fax at [phone], or by e-mail to [e-mail].

FOR FURTHER INFORMATION CONTACT:

Pam Chavez, Office of Legislation and Regulations, Visa Office, phone [phone], or by e-mail at [e-mail].

SUPPLEMENTARY INFORMATION:

What Changes Are Being Made to the Current Regulations?

Eligibility for Competition

The DV Program is provided for in sections 201(a)(3), 201(e), and 203(c) and 204(a)(1)(G) of the Immigration and Nationality Act (INA), as amended. The Department's regulations are found at 22 CFR 42.33. The Department is amending § 42.33 by revising paragraph (a)(1), revising paragraph (e) redesignating the following paragraphs, and adding a new paragraph (g) to provide further clarification of the statute regarding allocation of visa numbers and validity of the petition. The amendments make clear that under no circumstances may a consular officer issue a visa to an alien after the end of the fiscal year for which the alien was registered, and further that at the end of that fiscal year the petition is automatically revoked.

O*Net OnLine Replaces “Dictionary of Occupational Titles”

For all cases registered for a Diversity Visa Program after the date of this announcement, the Department of Labor's O*Net OnLine will be used to determine qualifying work experience rather than the Dictionary of Occupational Titles (DOT). For those cases registered for a Diversity Visa Program before the date of this announcement, the O*Net OnLine will also be used; however, if the O*Net OnLine-based determination differs from the DOT-based determination, and the applicant would be disadvantaged by the use of the O*Net OnLine determination, then the consular officer may use the DOT to make the determination. The O*Net OnLine can be accessed at http://online.onetcenter.org.

Applicant's Signature on Entry

The Department is redesignating paragraphs in paragraph (b) and adding a new paragraph (b)(2) addressing the applicant's signature on the entry. As in the past, applicants registering for the DV-2003 program, must personally sign the entry. However, beginning with registration for the 2003 DV Program, for anti-fraud purposes, the signature must be the applicant's usual and customary signature in his or her native alphabet. An initialed signature or block printing of the applicant's name will not be accepted and will result in the disqualification of the entry. If an applicant signs his or her name in the Roman alphabet, and that is not his or her native alphabet, the applicant must also sign in his or her native alphabet.

Photographs for Applicant and Dependents

A new paragraph (b)(3) is also added to address photographs. Beginning with the DV 2003 registration, the entry must include recent photographs of the applicant, his or her spouse and each child (natural children as well as legally-adopted children and stepchildren). Each family member must have a separate photograph. Group or family photos will not be accepted. Photographs must be submitted even though the spouse or child no longer resides with the applicant and whether or not the dependent will accompany or follow to join the applicant in the United States. The name and date of birth of each family member must be printed on the back of his or her photograph.

Why Are the Regulations Being Modified?

During the processing of the immigrant visa applications of aliens selected to compete for immigrant visas in earlier years, several consular offices encountered cases in which the visa applicant was proven, or strongly suspected, to be an impostor—that is, not the individual who had submitted the petition which had been selected. Thus, in order to provide additional deterrents to such abuses, the Department proposes to amend its regulations.

When Do the New Photograph and Signature Requirements Take Effect?

The new requirements are applicable to petitions which will be submitted early in Calendar Year 2001 by aliens seeking consideration to compete for visa issuance under the Diversity Immigrant Program during Fiscal Year 2003 (October 1, 2002 to September 30, 2003) and will be applicable in all subsequent years.

Interim Rule

Administrative Procedure Act

The Department's implementation of this regulation as an interim rule is based upon the “good cause” exceptions found at 5 U.S.C. 553(b)(B) and (d)(3). The publication of this rule as an interim rule will allow sufficient time for interested persons to comment on the regulatory changes and allows for timely registration for the DV-2003 scheduled for the end of July or early August of 2001.

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

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 DS-156, (OMB 1405-0018), 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 42

• Aliens
• Documentation
• Immigrants
• Passports, and Visas

Accordingly, 22 CFR part 42 is amended as follows:

PART 42—[AMENDED]

1. The authority citation for part 42 continues to read as follows:

Authority: 8 U.S.C. 1104.

2. Amend § 42.33 as follows:

a. By revising paragraphs (a)(1) and (a)(3);

b. By redesignating paragraphs (b)(2) and (b)(3) as paragraphs (b)(4) and (b)(5;

c. By revising paragraph (b)(1);

d. By adding new paragraphs (b)(2) and (b)(3);

e. By revising paragraph (e);

f. By redesignating paragraphs (g), (h), and (i) as paragraphs (h), (i) and (j);

g. By adding a new paragraph (g).

The revisions and additions to § 42.33 read as follows:

§ 42.33

Diversity immigrants.

(a) General—(1) Eligibility to compete for consideration under section 203(c). An alien shall be eligible to compete for consideration for visa issuance under INA 203(c) during a fiscal year only if he or she is a native of a low-admission foreign state, as determined by the Attorney General pursuant to INA 203(c)(1)(E)(i), with respect to the fiscal year in question; and if he or she has at least a high school education or its equivalent or, within the five years preceding the date of application for a visa, has two years of work experience in an occupation requiring at least two years training or experience. The eligibility for a visa under INA 203(c) ceases at the end of the fiscal year in question. Under no circumstances may a consular officer issue a visa or other documentation to an alien after the end of the fiscal year during which an alien possesses diversity visa eligibility.

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(3) Determinations of work experience. For all cases registered for the 2003 Diversity Visa Program, consular officers shall use the Department of Labor's O*Net OnLine to determine qualifying work experience. Consular officers shall use the O*Net OnLine for those cases registered for a Diversity Visa Program for a fiscal year prior to FY 2003, unless the O*Net OnLine-determination differs from the Dictionary of Occupational Titles (DOT)-determination and the applicant would be disadvantaged by the use of the O*Net OnLine.

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(b) Petition for consideration. (1) Form of petition. An alien claiming to be entitled to compete for consideration under INA 203(c) shall file a petition for such consideration. The petition shall consist of a sheet of paper on which shall be typed or legibly printed in the Roman alphabet:

(i) The petitioner's name;

(ii) Date and place of birth (including city and county of which the alien claims to be a native, if other than the country of birth;

(iii) Name(s), and date(s) and place(s) of birth of spouse and all child(ren), if any, (including legally-adopted and stepchildren, regardless of whether or not they are living with the petitioner or intend to accompany or follow to join the petitioner); and

(iv) Current mailing address.

(2) Signatures. The petitioner shall personally sign his or her signature to the sheet of paper, using his or her usual and customary signature in his or her native alphabet. (Neither an initialed signature nor block printing of the petitioner's name will be accepted and will result in the disqualification of the entry).

(3) Photograph. The alien shall also affix to the entry a photograph of himself or herself and photographs of his or her spouse and each child.

(i) The photograph shall be 2 inches (50 mm) square;

(ii) The alien shall print his or her name and date of birth on the back of the photograph.

(iii) The alien must be directly facing the camera;

(iv) The head of the person being photographed shall not be tilted up, down, or to the side, and must cover about 50% of the photo area.

(v) The photograph must be taken with the person in front of a neutral, light-colored background.

(vi) The alien's face must be focused;

(vii) The person in the photograph shall not wear a hat or glasses with a dark lens.

(viii) Photographs may be either color or black and white.

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(e) Validity of approved petitions. A petition approved pursuant to paragraph (d) of this section shall be valid until Midnight of the last day of the fiscal year for which the petition was submitted. At that time, the petition is automatically revoked pursuant to INA 203(c)(1) and no diversity immigrant visa numbers can be allotted after that date.

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(g) Allocation of visa numbers. Diversity immigrant visa numbers should be allocated in accordance with INA 203(c)(1) and shall be allotted only during the fiscal year for which a petition to accord diversity immigrant status was submitted and approved. Under no circumstances shall immigrant visa numbers be allotted after Midnight of the last day of the fiscal year for which the petition was submitted and approved.

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Dated: June 19, 2001.

Mary A. Ryan,

Assistant Secretary for Consular Affairs, Department of State.