2013-13315. Visas: Classification of Immediate Family Members as G Nonimmigrants

AGENCY:

State Department.

ACTION:

Final rule.

SUMMARY:

This rule permits qualified immediate family members of A-1 or A-2 nonimmigrants to be independently classified as G-1, G-2, G-3, or G-4 nonimmigrants. It also clarifies that immediate family members of G-1, G-2, G-3, and G-4 nonimmigrants who have employment authorization may remain in G classification upon gaining employment that would otherwise allow them to change status to A classification. This rule is being promulgated to allow family members of employees of bilateral missions to work at international organizations in a visa status that reflects their position with the international organization.

DATES:

This rule is effective June 5, 2013.

FOR FURTHER INFORMATION CONTACT:

Lauren A. Prosnik, Legislation and Regulations Division, Visa Services, Department of State, 2401 E Street NW., Room L-603D, Washington, DC 20520-0106, [phone].

SUPPLEMENTARY INFORMATION:

Why is the Department promulgating this rule?

Currently, 22 CFR 41.22(b) requires that an alien entitled to classification as an A-1 or A-2 nonimmigrant must be classified as such, even those who are also eligible for another nonimmigrant classification. This rule will allow an A-1 or A-2 derivative applicant who works for an international organization to be classified as G-1, G-2, G-3, or G-4 nonimmigrant.

Additionally, this rule amends 22 CFR 41.24(b)(4) to clarify that an immediate family member of a principal alien classifiable G-1 or G-2, G-3 or G-4 who has employment authorization may maintain G classification, even if employment obtained after entry would allow them to be classified under INA 101(a)(15)(A).

With this change, family members of diplomats assigned to the United States will be able to accept employment with international organizations and obtain visas that reflect their status as employees of such organizations, rather than as diplomatic dependents. Inability to obtain G visas has posed an impediment to the employment of some individuals in this category.

Regulatory Findings

Administrative Procedure Act

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 rulemaking procedures set forth at 5 U.S.C. 553.

Regulatory Flexibility Act/Executive Order 13272: Small Business

Because this final rule is exempt from notice and comment rulemaking under 5 U.S.C. 553, it is exempt from the regulatory flexibility analysis requirements set forth by the Regulatory Flexibility Act (5 U.S.C. 603 and 604). Nonetheless, consistent with the Regulatory Flexibility Act (5 U.S.C. 605(b)), the Department certifies that this rule will not have a significant economic impact on a substantial number of small entities.

Unfunded Mandates Reform Act of 1995

Section 202 of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1532, generally requires agencies to prepare a statement before proposing any rule that may result in an annual expenditure of $100 million or more by State, local, or tribal governments, or by the private sector. This rule will not result in any such expenditure, nor will it significantly or uniquely affect small governments.

Small Business Regulatory Enforcement Fairness Act of 1996

This rule is not a major rule as defined by 5 U.S.C. 804. 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.

Executive Order 12866

The Department of State has reviewed this rule to ensure its consistency with the regulatory philosophy and principles set forth in Executive Order 12866 and has determined that the benefits of this regulation outweigh any cost. The Department does not consider this rule to be an economically significant action within the scope of section 3(f)(1) of the Executive Order since it is not likely to have an annual effect on the economy of $100 million or more or to adversely affect in a material way the economy, a sector of the economy, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities.

Executive Orders 12372 and 13132: Federalism

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. The rule will not have federalism implications warranting the application of Executive Orders 12372 and 13132.

Executive Order 12988: Civil Justice Reform

The Department has reviewed the regulation in light of sections 3(a) and 3(b)(2) of Executive Order 12988 to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burden.

Executive Order 13563: Improving Regulation and Regulatory Review

The Department has considered this rule in light of Executive Order 13563, dated January 18, 2011, and affirms that this regulation is consistent with the guidance therein.

Paperwork Reduction Act

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
• Documentation of nonimmigrants
• Foreign officials
• Immigration
• Passports and Visas

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

PART 41—[AMENDED]

1. The authority citation for Part 41 continues to read as follows:

Authority: 8 U.S.C. 1104; Pub. L. 105-277, 112 Stat. 2681-795 through 2681-801; 8 U.S.C. 1185 note (section 7209 of Pub. L. 108-458, as amended by section 546 of Pub. L. 109-295).

2. Section 41.22 is amended by revising paragraphs (a) and (b) to read as follows:

§ 41.22

Officials of foreign governments.

(a) Criteria for classification of foreign government officials. (1) An alien is classifiable A-1 or A-2 under INA section 101(a)(15)(A) (i) or (ii) if the principal alien:

(i) Has been accredited by a foreign government recognized de jure by the United States;

(ii) Intends to engage solely in official activities for that foreign government while in the United States; and

(iii) Has been accepted by the President, the Secretary of State, or a consular officer acting on behalf of the Secretary of State.

(2) A member of the immediate family of a principal alien is classifiable A-1 or A-2 under INA section 101(a)(15)(A)(i) or (ii) if the principal alien is so classified.

(b) Classification under INA section 101(a)(15)(A). An alien entitled to classification under INA section 101(a)(15)(A) shall be classified under this section even if eligible for another nonimmigrant classification. An exception may be made where an immediate family member classifiable as A-1 or A-2 under paragraph (a)(2) of this section is also independently classifiable as a principal under INA section 101(a)(15)(G)(i), (ii), (iii), or (iv).

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3. Section 41.24 is amended by revising paragraph (b) to read as follows:

§ 41.24

International organization aliens.

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(b) Aliens coming to international organizations. (1) An alien is classifiable under INA 101(a)(15)(G) if the consular officer is satisfied that the alien is within one of the classes described in that section and seeks to enter or transit the United States in pursuance of official duties. If the purpose of the entry or transit is other than pursuance of official duties, the alien is not classifiable under INA section 101(a)(15)(G).

(2) An alien applying for a visa under the provisions of INA section 101(a)(15)(G) may not be refused solely on the grounds that the applicant is not a national of the country whose government the applicant represents.

(3) An alien seeking to enter the United States as a foreign government representative to an international organization, who is also proceeding to the United States on official business as a foreign government official within the meaning of INA section 101(a)(15)(A), shall be issued a visa under that section, if otherwise qualified.

(4) An alien not classified under INA section 101(a)(15)(A) but entitled to classification under INA section 101(a)(15)(G) shall be classified under the latter section, even if also eligible for another nonimmigrant classification. An alien classified under INA section 101(a)(15)(G) as an immediate family member of a principal alien classifiable G-1 or G-2, G-3 or G-4, may continue to be so classified even if he or she obtains employment subsequent to his or her initial entry into the United States that would allow classification under INA section 101(a)(15)(A). Such alien shall not be classified in a category other than A or G, even if also eligible for another nonimmigrant classification.

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Dated: May 2, 2013.

Janice L. Jacobs,

Assistant Secretary for Consular Affairs, Department of State.