2024-10245. Third-Party Attendance at Appointments for Passport, Consular Report of Birth Abroad (CRBA), and Certain Other Services

AGENCY:

Department of State.

ACTION:

Final rule.

SUMMARY:

This rule adopts as final the notice of proposed rulemaking (NPRM) published in the Federal Register on July 26, 2023. This final rule provides that private attorneys, interpreters, and other third parties may attend certain appointments at passport agencies and centers and at U.S. embassies and consulates overseas to assist the person requesting services (the applicant/requester). This rule permitting third-party attendance will apply only to appointments in support of an application for a U.S. passport, either domestically or overseas; to appointments related to a request for a Consular Report of Birth Abroad or a Certificate of Loss of Nationality of the United States (CLN); and to other appointments for certain other services offered by American Citizens Services (ACS) units at U.S. embassies and consulates overseas (posts). In addition, this final rule includes technical corrections to clarify who may act as a consular officer for purposes of the Protection and Welfare of Citizens and their Property.

DATES:

The final rule is effective June 12, 2024.

FOR FURTHER INFORMATION CONTACT:

Jennifer Tinianow, Office of Adjudication, Passport Services, [phone], or email [e-mail].

SUPPLEMENTARY INFORMATION:

The Department of State (Department) published a proposed rule (Public Notice 11999) on July 26, 2023, at 88 FR 48143, with 60 days provided for public comment. This final rule amends title 22 of the Code of Federal Regulations (CFR) by updating parts 50, 51, and 71 to publish regulations regarding when attorneys, interpreters, or other third parties may attend an appointment either domestically or overseas for a U.S. passport, Consular Report of Birth Abroad (CRBA), Certificate of Loss of Nationality (CLN) services, or for certain other U.S citizen services offered by ACS units at post.

Additionally, the final rule includes technical amendments to 22 CFR part 71 to clarify that appropriately designated Department employees, in addition to officers of the Foreign Service, may assist U.S. citizens seeking assistance at overseas posts. This change is consistent with federal law and regulations which were amended after 22 CFR part 71 was established in 1957.

Analysis of Comments

The comment period for the proposed rule closed September 25, 2023, after a 60-day comment period. Three comments were received. One comment expressed unqualified support for the rule, noting that third-party assistance at the applicant's expense is crucial to disabled persons, the elderly, children, and many other people requesting U.S. citizens services. The other two comments also specifically expressed appreciation for the role that professional assistance of counsel may provide. The comments raised the following topics:

Topic 1: Qualifications of Attorney, Other Third-Party Attendee

Two commenters expressed concern that the draft rule does not specify any qualifications that an attorney and/or other third party must have as a prerequisite to attending covered appointments. In particular, the commenters expressed concern about unauthorized practice of law.

The Department has previously considered whether to develop specific requirements that an individual must meet (and presumably establish to the satisfaction of the U.S. diplomatic or consular officer) to qualify as an “other third party” with a view, in part, to protect against unauthorized practice of law by, e.g., non-attorney immigration consultants. We have also considered whether to limit the definition of “attorney” to persons admitted to the bar of and licensed to practice in a U.S. state who are in good standing. However, in promulgating this rule, the Department is not seeking to regulate the person who a U.S. citizen chooses to accompany them to their appointment. While there is no Department-imposed requirement that an applicant/requester be represented by an attorney or other third party (regardless of qualifications) to apply for a U.S. passport, Consular Report of Birth Abroad, or any other covered service, the Department recognizes that some U.S. citizens may wish for a private attorney, interpreter and/or other third party of their choice to physically accompany them to the appointment. Particularly when an individual is seeking to document their citizenship and/or request other services offered by the American Citizens Services Unit at a U.S. embassy or consulate, the Department's goal is to facilitate as much as possible a U.S. citizen's choice of whom, if anyone, they wish to accompany them. This discretion to choose may be critical for persons of limited resources who may not be able to afford an attorney, and/or for the most vulnerable, including the elderly or disabled. Additionally, time and resource constraints as well as logistical difficulties in establishing a set of required qualifications to apply equally in all cases, which would require post and/or headquarters to verify information to ensure compliance, would unnecessarily complicate and limit the applicant/requester's ability to identify someone who may be eligible to accompany them. The Department will confirm that the applicant/requester has asked the third party to be present and will verify that the third party is cleared by Diplomatic Security using the applicable security procedures. The Department will include appropriate language on its public-facing website about the policy that will also inform the public that: (1) the Department does not require anyone to have an attorney or other third party to obtain and/or attend an appointment for a covered service; (2) the Department neither requires a third party to have, nor does the Department check to ensure that a third party has, any specific qualifications (beyond meeting security requirements); and, (3) that permitting a third party to attend an appointment in no way constitutes an endorsement of the third party and/or a representation that the third party has certain, or any, qualifications and/or ability to provide any assistance to the applicant/requester.

Topic 2: Scope of Covered Appointments

One comment urged the Department to consider expanding the proposed rule to allow attorneys to accompany their clients to immigrant visa and nonimmigrant visa interviews at U.S. embassies and consulates abroad. For decades the Department has deferred to consular sections in deciding whether attorneys or other third parties may be present at a visa interview; applying a uniform approach surrounding visa appointments does not account for the differing capacity, logistical, and security constraints, among other considerations that only the consular section can best assess. There are also different legal requirements and considerations pertaining to visa interviews that must be examined. For these reasons, we continue to defer to consular sections in deciding whether attorneys or other third parties may be present at a visa interview.

Topic 3: Proposed Amendments to 22 CFR 50.40(f)

One commenter requested that the Department “more clearly reflect and clarify” the view that an applicant's/requester's attorney may be present throughout all stages of the process to request a Certificate of Loss of Nationality of the United States (CLN), up to and including the administration of the oath of renunciation, as articulated by Edward A. Betancourt in his 2008 letter to the commenter (attached to the comment).

The Department recognizes the importance of consistent application across all posts of a rule permitting an attorney, interpreter, and/or other third party to attend interviews related to a request for a CLN and to be present (at the request of the U.S. citizen) when a U.S. diplomatic or consular officer administers an oath of renunciation to the U.S. citizen under Immigration and Nationality Act section 349(a)(5) (8 U.S.C. 1481). The Department intends to take all appropriate steps to ensure compliance with the terms of this rule, and will update guidance to its employees in its Foreign Affairs Manual (FAM). To the extent that the commenter may be requesting a change to the proposed text of the rule to “more clearly reflect and clarify” the views articulated by Edward A. Betancourt in 2008, the Department believes that the text of 22 CFR 50.40(f) is clear and consistent with such views and declines to further amend the text.

Specifically, 22 CFR 50.40(f) provides that individuals may, at their own expense, have a private attorney, interpreter, and/or other third party of their own choice physically present during any in-person appointment, including interview appointments, at a U.S. embassy or consulate abroad related to a request for a Certificate of Loss of Nationality (CLN) [emphasis added]. The words “any in-person appointment” clearly encompass any in-person appointment, including one at which the oath of renunciation is administered.

Secondly, even though the text will generally permit an attorney's physical presence at any in-person appointment, consistent with the views expressed by Edward A. Betancourt in his 2008 letter, the text in 22 CFR 50.40(f)(4) clearly provides for diplomatic or consular officer discretion by stating the diplomatic or consular officer conducting the interview shall have the discretion to interview the individual alone, without an attorney and/or other third party present, when necessary to evaluate whether the individual has performed a potentially expatriating act independently, free from duress or coercion, and with intent to relinquish U.S. nationality.

While this text is somewhat broader than that which Edward A. Betancourt used in his 2008 letter ( i.e., Mr. Betancourt stated that the U.S. diplomatic or consular officer may exercise discretion in determining whether to permit an attorney to attend the oath of renunciation, whereas this rule covers any stage of the process as warranted by the circumstances), diplomatic or consular officer discretion supports the consular officer's responsibility to evaluate voluntariness and intent and helps ensure the integrity of the process at all stages, including at an initial interview.

Finally, although the text of 22 CFR 50.40(f) specifies that the requester must personally respond to the diplomatic or consular officer's questions, it does not preclude an attorney from addressing the consular officer should a legal question arise during the interview.

Regulatory Findings

Administrative Procedure Act

The Department published this rulemaking as a proposed rule and provided 60 days for public comment. The effective date of this final rule will be 30 days from date of publication.

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 rulemaking will not have a significant economic impact on a substantial number of small entities. Only individuals, and no small entities, apply for passports or CRBAs or other services offered by the American Citizens Services (ACS) units at U.S. embassies and consulates overseas.

Congressional Review Act

This rule has not been designated as “major” within the meaning of the Congressional Review Act, 5 U.S.C. 801 et seq.

Unfunded Mandates Act of 1995

This final rule does 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.

Executive Orders 12866, 14094, and 13563

The Department has reviewed this final rule to ensure its consistency with the regulatory philosophy and principles set forth in Executive Order 12866. Applicants appearing for passport and/or CRBA appointments, or seeking certain other services from an ACS unit overseas, occasionally request that a private attorney, interpreter, or other third party physically accompany them to the appointment; however, there is nothing in the Department's regulations that currently addresses this. The Department finds that the cost of this rulemaking to the public is expected to be minimal and provides a potential benefit to individuals who wish an attorney, interpreter, or other third party to accompany them to a passport, CRBA, or other appointment at an ACS unit overseas. At the same time, those who wish to appear without being accompanied by such individuals may do so; this rulemaking does not mandate any change in the public's behavior. Additionally, the Department does not anticipate that demand for passport, CRBA, or other services at ACS units overseas will change as a result of this rulemaking. In summary, the Department anticipates no substantive impact on the public from this final rule. The Department of State has considered this final rule in light of Executive Order 13563, dated January 18, 2011, and affirms that this regulation is consistent with the guidance therein.

Executive Orders 12372 and 13132—Federalism

This rule 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 rulemaking does not have sufficient federalism implications to require consultations or warrant the preparation of a federalism summary impact statement. The regulations implementing E.O. 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this regulation.

Executive Order 13175—Consultation With Tribal Governments

The Department has determined that this rulemaking does not have tribal implications, does not impose substantial direct compliance costs on Indian tribal governments, and does not pre-empt tribal law. Accordingly, the requirements of E.O. 13175 do not apply to this rule.

Paperwork Reduction Act

This rulemaking does not impose any new reporting or recordkeeping requirements subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 35.

List of Subjects

22 CFR Part 50

• Citizenship and Naturalization

22 CFR Part 51

• Passports

22 CFR Part 71

• Protection of US citizens abroad

Accordingly, for the reasons set forth in the preamble, 22 CFR parts 50, 51, and 71 are amended as follows:

PART 50—NATIONALITY PROCEDURES

1. The authority for part 50 continues to read as follows:

Authority: 22 U.S.C. 2651a; 8 U.S.C. 1104 and 1401 through 1504.

2. Amend § 50.40 by adding paragraph (f) to read as follows:

§ 50.40

Certification of loss of U.S. nationality.

* * * * *

(f) Attorney or Other Third-Party Presence at In-Person CLN appointments. Individuals may, at their own expense, have a private attorney, interpreter, or other third party of their own choice physically present during any in-person appointment, including interview appointments, at a U.S. embassy or consulate abroad related to a request for a Certificate of Loss of Nationality (CLN); provided that:

(1) The individual and/or the attorney or other third party shall provide advance notice of the attorney's or other third party's intent to attend the CLN appointment in the manner specified by the Department of State and/or the specific U.S. embassy or consulate where the appointment is to take place;

(2) The individual requesting the CLN must appear in person for the mandatory in-person interview appointment(s); attendance by an attorney or other third party shall not be in lieu of the individual's in-person appearance;

(3) The diplomatic or consular officer will direct all interview questions to the individual requesting the CLN, and the individual must personally respond to the consular officer;

(4) The diplomatic or consular officer conducting the interview shall have the discretion to interview the individual alone, without an attorney or third-party present, when necessary to evaluate whether the individual has performed a potentially expatriating act independently, free from duress or coercion, and with intent to relinquish U.S. nationality;

(5) Nothing in this section abrogates any policies, security directives, and guidelines from the Department, Chief of Mission, or Diplomatic Security Service regarding admission to or conduct in the U.S. embassy or consulate. All persons entering a U.S. embassy or consulate shall comply with all policies, security directives, guidelines, and protocols including but not limited to those regarding security, identification, screening, electronic devices, recording, health, and conduct. Individuals may be refused entry or directed to leave the U.S. embassy or consulate for noncompliance with such policies, directives, guidelines, and protocols.

3. Add subpart D, consisting of § 50.52, to read as follows:

Subpart D—Third-Party Attendance at Appointments for Passport and Consular Report of Birth Abroad (CRBA) Appointments

§ 50.52

Attorney or other third-party assistance.

(a) A person appearing for a passport appointment at a passport agency or center domestically or a U.S. embassy or consulate overseas or for a Consular Report of Birth Abroad (CRBA) appointment overseas may be physically accompanied by a private attorney, interpreter, or other third party of their own choice at their own expense to provide assistance. All regulations related to passport and CRBA applications in this chapter continue to apply.

(1) An applicant and/or their third-party attendee or attorney may, at their own expense, bring their own interpreter to any passport and/or CRBA appointment, provided the applicant or their attorney or third-party attendee provides advance notice of such attendance pursuant to guidance issued by the Department.

(2) Attendance by an attorney or other third party at the appointment does not excuse the in-person appearance of the applicant as outlined by 22 CFR 51.21 and 51.28.

(3) Nothing in this section abrogates any policies, security directives, and guidelines from the Department, Chief of Mission, or Diplomatic Security Service regarding admission to or conduct in a domestic passport agency or center or at a U.S. embassy or consulate overseas. All persons entering a domestic passport agency or center or a U.S. embassy or consulate overseas shall comply with all policies, security directives, guidelines, and protocols, including but not limited to those regarding security, identification, screening, electronic devices, recording, health, and conduct. Individuals may be refused entry or directed to leave the U.S. embassy or consulate for noncompliance with such policies, directives, guidelines, and protocols.

PART 51—PASSPORTS

4. The authority citation for part 51 continues to read as follows:

Authority: 8 U.S.C. 1504; 18 U.S.C. 1621; 22 U.S.C. 211a, 212, 212b, 213, 213n (Pub. L. 106-113 Div. B, Sec. 1000(a)(7) [Div. A, Title II, Sec. 236], 113 Stat. 1536, 1501A-430); 214, 214a, 217a, 218, 2651a, 2671(d)(3), 2705, 2714, 2714a, 2721, & 3926; 26 U.S.C. 6039E; 31 U.S.C. 9701; 42 U.S.C. 652(k) [Div. B, Title V of Pub. L. 103-317, 108 Stat. 1760]; E.O. 11295, Aug. 6, 1966, FR 10603, 3 CFR, 1966-1970 Comp., p. 570; Pub. L. 114-119, 130 Stat. 15; Sec. 1 of Pub. L. 109-210, 120 Stat. 319; Sec. 2 of Pub. L. 109-167, 119 Stat. 3578; Sec. 5 of Pub. L. 109-472, 120 Stat. 3554; Pub. L. 108-447, Div. B, Title IV, Dec. 8, 2004, 118 Stat. 2809; Pub. L. 108-458, 118 Stat. 3638, 3823 (Dec. 17, 2004).

5. Add § 51.29 to subpart B to read as follows:

§ 51.29

Attorney or other third-party assistance.

A person seeking passport services may be physically accompanied by an attorney, interpreter, or other third party of their own choice at their own expense in accordance with 22 CFR 50.52.

PART 71—PROTECTION AND WELFARE OF CITIZENS AND THEIR PROPERTY

6. The authority citation for part 71 is revised to read as follows:

Authority: 22 U.S.C. 3904; 22 U.S.C. 2715; 22 U.S.C. 2715a; 22 U.S.C 2715b; 22 U.S.C. 2715c; 22 U.S.C. 2671(b)(2); 22 U.S.C. 2671(d); 22 U.S.C. 2670(j); 22 U.S.C. 4196; 22 U.S.C. 4197.

7. Revise § 71.1 to read as follows:

§ 71.1

Protection of Americans abroad.

(a) Consular officers shall perform such duties in connection with the protection of U.S. nationals abroad as may be required by regulations prescribed by the Secretary of State.

(b) U.S. citizens seeking protection, welfare, or other routine American Citizen Services, Special Consular Services, and consular crisis preparedness and response from an American Citizens Services Unit at a U.S. embassy or consulate may be assisted in related proceedings by a third party of their own choice at their own expense in accordance with 22 CFR 50.52.

(c) For purposes of this part, consular officer includes any United States citizen employee of the Department of State who is designated by the Deputy Assistant Secretary of State for Overseas Citizens Services to perform consular services overseas.

§ 71.5

[Amended]

8. Amend § 71.5 by removing the words “officer of the Foreign Service” and adding “diplomatic or consular officer of the United States” in its place.

§ 71.6

[Amended]

9. Amend § 71.6 by removing the words “Officers of the Foreign Service” and adding “Diplomatic or consular officers of the United States” in its place.

Rena Bitter,

Assistant Secretary, Bureau of Consular Affairs, Department of State.