[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: 94-646]


[[Page Unknown]]

[Federal Register: January 11, 1994]


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DEPARTMENT OF JUSTICE
8 CFR Part 212

[INS No. 1225-92]
RIN 1115-AB40

 

Waiver of Certain Types of Visas

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Final rule.

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SUMMARY: This rule amends the Immigration and Naturalization Service 
(Service) regulations to permit district directors, acting alone, to 
waive a nonimmigrant visa or passport under section 212(d)(4)(A) of the 
Immigration and Nationality Act in individual cases, if satisfied that 
a nonimmigrant alien is unable to present these documents because of an 
unforeseen emergency. Formerly, in such circumstances the district 
director was required to seek concurrence of the Department of State 
Visa Office to grant a waiver of the nonimmigrant visa or passport. In 
eliminating the step of seeking concurrence on each waiver, this 
amendment will save resources for both agencies and reduce the time it 
takes to admit certain nonimmigrant aliens.

EFFECTIVE DATE: January 11, 1994.

FOR FURTHER INFORMATION CONTACT:
Diane Hinckley, Assistant Chief Inspector, Inspections Division, 
Immigration and Naturalization Service, 425 I Street NW., room 7228, 
Washington, DC 20536, telephone number (202) 616-7493.

SUPPLEMENTARY INFORMATION: Section 212(d)(4)(A) of the Immigration and 
Nationality Act allows the Secretary of State and the Attorney General, 
acting jointly, to waive a nonimmigrant alien's visa or passport when 
an alien is unable to present the required documents due to an 
unforeseen emergency. Previously, when such a nonimmigrant appeared at 
a port of entry, the Immigration and Naturalization Service district 
director was required to seek the concurrence of the Department of 
State Visa Office prior to granting the waiver. Pursuant to the 
authority delegated to the Commissioner of the Immigration and 
Naturalization Service by title 8 U.S.C. section 103 and to the 
Director of the Visa Office of the Department of State by title 8 
U.S.C. section 104, the Commissioner and the Director of the Visa 
Office, acting jointly, determined that the previous procedure was 
unnecessarily burdensome. Officers of the Department of State concurred 
with the recommendations from the ports of entry in over 95% of the 
cases presented. Having the district director exercise the function of 
the Department of State Visa Office simultaneously with the function 
assigned to the Immigration and Naturalization Service will save 
resources for both agencies and result in a quicker admission of the 
alien. If the district director is satisfied that the alien failed to 
present a passport or a visa because of an unforeseen emergency and 
that the alien should be granted the waiver, then the procedure at the 
ports of entry will remain the same. The alien will fill out an 
application for the waiver, the information will be checked, and a fee 
will be charged. The Department of State is promulgating a similar 
regulation that amends Sec. 41.2 of title 22, Code of Federal 
Regulations.
    The Immigration and Naturalization Service (The Service) published 
a proposed rule, with a request for comments, in the Federal Register 
on July 30, 1991, at 56 FR 36028, amending 8 CFR 212.1(g). The comment 
period ended on August 29, 1991. The Service received three comments. 
One commentor endorsed the rule's practicality but recommended a change 
in language in the phrase ``unable to obtain the required documents'' 
so that it reads ``unable to present the required documents''. The 
Service agrees that the change improves the rule by allowing waivers to 
be granted in cases where the alien possesses the required documents 
but cannot produce them at the port of entry. This change is 
incorporated in the final rule.
    Another commentor expressed concern that language in the proposed 
regulation might mislead a reader to think that the Service will seek 
concurrence from the Visa Office without first determining that the 
alien is entitled to a waiver of documents. Such a procedure would be a 
deviation from the Service's past practice rather than a continuation 
of it, as the Service intends, except for eliminating the step of 
seeking concurrence from the Department of State Visa Office. Language 
in the final rule has been changed to clarify this point.
    Another commentor noted that transportation companies cannot board 
an alien passenger traveling in emergency circumstances who lacks the 
required documents without incurring a fine at the port of entry. The 
commentor recommended adding a provision to the rule which would 
specify the steps a carrier must take to board such a passenger without 
incurring a fine. This rule is not intended to expand the circumstances 
under which an alien may apply for a waiver of documents, only to 
simplify the administrative procedure for granting a waiver, and 
therefore the recommendation will not be incorporated into the final 
rule.
    In accordance with 5 U.S.C. 605(b), the Commissioner of the 
Immigration and Naturalization Service certifies that this rule will 
not have a significant adverse economic impact on a substantial number 
of small entities. This rule merely reflects an agreement reached 
between the Department of State and the Immigration and Naturalization 
Service that results in a less burdensome administrative procedure. In 
addition, members of the public are serviced in a more expeditious 
manner as a result of the effect of this rule.
    This rule is not significant within the meaning of section 3(f) of 
E.O. 12866, nor does this rule have Federalism implications warranting 
the preparation of a Federalism Assessment in accordance with E.O. 
12612.
    The information collection requirement contained in this rule has 
been cleared by the Office of Management and Budget under the 
provisions of the Paperwork Reduction Act. The OMB control number for 
this collection is contained in 8 CFR 299.5.

List of Subjects in 8 CFR Part 212

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

    Accordingly, part 212 of chapter I of title 8 of the Code of 
Federal Regulations is amended as follows:

PART 212--DOCUMENTARY REQUIREMENTS: NONIMMIGRANTS; WAIVERS; 
ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE

    1. The authority citation for part 212 continues to read as 
follows:

    Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1225, 1226, 
1228, 1252; 8 CFR part 2.

    2. In Sec. 212.1, the first two sentences in paragraph (g) are 
revised to read as follows:


Sec. 212.1  Documentary requirements for nonimmigrants.

* * * * *
    (g) Unforeseen emergency. A visa and a passport are not required of 
a nonimmigrant who, either prior to his or her embarkation at a foreign 
port or place or at the time of arrival at a port of entry in the 
United States, satisfies the district director at the port of entry 
that, because of an unforeseen emergency, he or she is unable to 
present the required documents, in which case a waiver application 
shall be made on Form I-193. The district director may approve a waiver 
of documents in each case in which he or she is satisfied that the 
nonimmigrant cannot present the required documents because of an 
unforeseen emergency and the waiver would be appropriate in the 
circumstances. * * *
* * * * *
    Dated: January 5, 1994.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 94-646 Filed 1-10-94; 8:45 am]
BILLING CODE 4410-10-M