[Federal Register Volume 59, Number 7 (Tuesday, January 11, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-645]


[[Page Unknown]]

[Federal Register: January 11, 1994]


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DEPARTMENT OF STATE

Bureau of Consular Affairs

22 CFR Part 41

[Public Notice 1931]

 

Visas: Documentation of Nonimmigrants Under the Immigration and 
Nationality Act; Waiver by Secretary of State and Attorney General of 
Passport and/or Visa Requirements for Certain Categories of 
Nonimmigrants

AGENCY: Bureau of Consular Affairs, DOS.

ACTION: Final rule.

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SUMMARY: This final rule authorizes the District Director of the 
Immigration and Naturalization Service to exercise the Department of 
State's function with respect to the waiver of the passport and/or visa 
requirement under the provisions of section 212(d)(4)(A) of the 
Immigration and Nationality Act (INA). The rule eliminates time 
consuming procedures for obtaining the concurrence of passport and/or 
visa waivers, and benefits certain nonimmigrant aliens who, because of 
unforeseen circumstances, are subjected to delays when seeking 
admission to the United States without the required documents.

EFFECTIVE DATE: January 11, 1994.

FOR FURTHER INFORMATION CONTACT: Stephen K. Fischel, Chief, Legislation 
and Regulations Division, Visa Services, Washington, DC, (202) 663-
1204.

SUPPLEMENTARY INFORMATION: On July 30, 1991, the Department of State 
published a Notice of Proposed Rulemaking (NPRM) at 56 FR 36029. The 
rule proposed to amend part 41, Sec. 41.2(j), which provided for the 
waiver of the passport and/or visa requirement by the District Director 
of the Immigration and Naturalization Service (INS) at the port of 
entry, with the concurrence of the designated State Department 
official, if such officials were satisfied that the nonimmigrant alien 
was unable to obtain the required documentation because of an 
unforeseen emergency. This final rule authorizes the District Director 
of the Immigration and Naturalization Service at the port of entry to 
exercise the Department of State's function with respect to the waiver 
of the passport and/or visa requirement under the provisions of INA 
212(d)(4)(A).

Comment

    During the comment period the Department received only one comment. 
The commenting organization noted that under the proposed regulations 
nonimmigrants who are ``unable to obtain'' the required documents may 
benefit from such a waiver. The commenter suggested that the proposed 
language be amended to read ``unable to present'' the required 
documents.
    A review of the historical files reveals that the language in 
question has been in use since at least 1958. The focus at that time 
was on fact patterns in which the alien indeed could not for 
geographical, political, and other reasons obtain the required 
documents. Circumstances have changed radically since that time. The 
Department believes that the recommendation to change the word 
``obtain'' to read ``present'' has merit as it more accurately reflects 
current world circumstances and the intent of the statute. In order to 
gain admission to the United States an alien must present the required 
pertinent documentation, whether one has the ability or not to obtain 
such. Absent such documentation, the immigration officer in charge at 
the port of entry must decide whether the applicant for admission is 
indeed qualified for the desired nonimmigrant visa classification and 
whether the inability to present the required documentation was due to 
an unforeseen emergency.
    Furthermore, the Department wishes to clarify the limited extent of 
the authority delegated to the Immigration and Naturalization Service. 
Although the proposed rule permits the District Director to waive the 
documentary requirements of INA 212(a)(7)(B), the Department of State 
will continue to exercise the authority vested in the Secretary of 
State and the Attorney General under the provisions of INA 212(d)(4)(A) 
relating to the joint concurrence in documentary waivers, except in the 
circumstances described in Sec. 41.2(j) of this final rule. 
Consequently, this final rule makes minor modifications to the text of 
the regulation as discussed in the preamble.
    This final rule is not considered to be a major rule for purposes 
of E.O. 12291 nor is it expected to have a significant impact on a 
substantial number of small entities under the criteria of the 
Regulatory Flexibility Act. In addition, this rule does not impose 
information collection requirements under the provisions of the 
Paperwork Reduction Act of 1980. This rule has been revised as required 
by E.O. 12778 and certified to be in compliance therewith.

List of Subjects in 22 CFR Part 41

    Aliens, Documentation, Nonimmigrants, Passport and visas, Waivers.

    Accordingly, 22 CFR part 41 is amended as follows:

PART 41--[AMENDED]

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

    Authority: Sec. 104, 66 Stat. 174, 8 U.S.C. 1104; Sec. 
109(b)(1), 91 Stat. 847.

    2. In Sec. 41.2, paragraph (j) is revised to read as follows:


Sec. 41.2  Waiver by Secretary of State and Attorney General of 
passport and/or visa requirements for certain categories of 
nonimmigrants.

* * * * *
    (j) Individual cases of unforeseen emergencies. A visa and passport 
are not required of an alien if, either prior to the alien's 
embarkation abroad or upon arrival at a port of entry, the responsible 
district director of the Immigration and Naturalization Service in 
charge of the port of entry concludes that the alien is unable to 
present the required documents because of an unforeseen emergency. Any 
waiver of the visa or passport requirement may be granted by the INS 
district director pursuant to INA 212(d)(4)(A) without the prior 
concurrence of the Department of State in each case in which the 
district director concludes that the alien's claim of emergency 
circumstances is legitimate and bona fide and that approval of the 
waiver would be appropriate under all of the attendant facts and 
circumstances.
* * * * *
    Dated: January 5, 1994.
Mary A. Ryan,
Assistant Secretary for Consular Affairs.
[FR Doc. 94-645 Filed 1-10-94; 8:45 am]
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