02-269. Documentation of Immigrants Under the Immigration and Nationality Act, as Amended-Issuance of New or Replacement Visas

AGENCY:

Department of State.

ACTION:

Interim rule.

SUMMARY:

The Department is updating and clarifying the regulation pertaining to the issuance of replacement visas by deleting a citation which is no longer in force and making some editorial changes.

DATES:

This interim rule is effective January 11, 2002. Written comments are invited and must be received on or before March 12, 2002.

ADDRESSES:

Written comments may be submitted, in duplicate, to the Legislation and Regulations Division, Visa Services, Department of State,Washington, DC 20520-0106.

FOR FURTHER INFORMATION CONTACT:

Elizabeth J. Harper, Legislation and Regulations Division, Visa Services, Department of State, Washington, DC 20520-0106, [phone], e-mail Harper ([e-mail]) or fax at [phone].

SUPPLEMENTARY INFORMATION:

The current regulation relating to the issuance of replacement visas at 22 CFR 42.74(b) includes a citation to “INA 124” This is an incorrect citation; it is being deleted, rather than corrected, because the provisions of the section intended are no longer in effect. In addition to the deletion of this citation, subsection (b) has been editorially changed to include descriptions of the classes of aliens referred to, rather than just a succession of statutory citations. Some typographical errors have also been corrected.

Regulatory Analysis and Notices

Administrative Procedure Act

The Department is publishing this rule as an interim rule, with a 60-day provision for post-promulgation public comments, based on the “good cause” exceptions set forth at 5 U.S.C. 553(b)(3)(B) and 553(d)(3). This rule does not make substantive changes. Delay of this rule for the benefit of public notice and comments is unnecessary inasmuch as its substance results from elimination of an incorrect and out-dated citation and editorial clarifications only.

Regulatory Flexibility Act

Pursuant to § 605 of the Regulatory Flexibility Act, the Department has assessed the potential impact of this rule, and the Assistant Secretary for Consular Affairs hereby certifies that it is not expected to 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 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 require consultations or warrant the preparation of a federalism summary impact statement.

Paperwork Reduction Act

This rule does not impose any new reporting or record-keeping requirements subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 35.

List of Subjects in 22 CFR Part 42

• Aliens
• Immigrants
• Passports and visas

Accordingly, the Department of State amends 22 CFR as set forth below.

PART 42—[AMENDED]

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

Authority: 8 U.S.C. 1104.

2. Amend § 42.74 by revising paragraph (b)(1) to read as follows:

§ 42.74

Issuance of new or replacement visas.

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(b) Replacement immigrant visa for an immediate relative or for an alien subject to numerical limitation.

(1) A consular officer may issue a replacement visa under the original number of a qualified alien entitled to status as an immediate relative (INA 201(b)(2)), a family or employment preference immigrant (INA 203(a) or (b)), or a diversity immigrant (INA 203(c)), if—

(i) The alien is unable to use the visa during the period of its validity due to reasons beyond the alien's control;

(ii) The visa is issued during the same fiscal year in which the original visa was issued, or in the following year, in the case of an immediate relative only, if the original number had been reported as recaptured;

(iii) The number has not been returned to the Department as a “recaptured visa number” in the case of a preference or diversity immigrant;

(iv) The alien pays anew the statutory application and issuance fees; and

(v) The consular officer ascertains whether the original issuing office knows of any reason why a new visa should not be issued.

* * * * *

Dated: November 27, 2001.

Mary A. Ryan,

Assistant Secretary for Consular Affairs, Department of State.