[Federal Register Volume 59, Number 81 (Thursday, April 28, 1994)]
[Unknown Section]
[Page ]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-10121]


[Federal Register: April 28, 1994]


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DEPARTMENT OF STATE

Bureau of Consular Affairs

22 CFR Part 42

[Public Notice 1995]


Visas: Documentation of Immigrants Under the Immigration and 
Nationality Act, as Amended

AGENCY: Bureau of Consular Affairs, Department of State.

ACTION: Amended notice of proposed rule.

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SUMMARY: This document withdraws the proposed rule published on April 
15, 1994 (59 FR 18010) on the subject of the place of application for 
an immigrant visa and replaces it with a new proposed rule. This 
proposed rule would amend immigrant visa regulations to make clear that 
the Department has the authority to determine where an alien's 
immigrant visa application shall be processed and to revise the text 
thereof for clarity and consistency of usage.

DATES: Written comments must be received on or before May 31, 1994.

ADDRESSES: Interested persons are invited to submit comments in 
duplicate to: Director, Office of Legislation, Regulations, and 
Advisory Assistance, Visa Office, Department of State, Washington, DC, 
20522-0113.

FOR FURTHER INFORMATION CONTACT: Cornelius D. Scully, III, Director, 
Office of Legislation, Regulations, and Advisory Assistance, Visa 
Office, (202) 663-1184.

SUPPLEMENTARY INFORMATION: On April 15, 1994, the Department published 
a notice of proposed rule (59 FR 18010). Due to problems which occurred 
in converting the draft document from one computer system to another, 
certain revisions to the document were not incorporated into the 
version which was sent for publication. The Department is, therefore, 
withdrawing the the April 15, 1994 proposed rulemaking which revised 22 
CFR 42.61(a) and is hereby publishing the revised proposed rule.
    22 CFR 42.61 is that portion of the Department's immigrant visa 
regulations which establishes rules for determining at which consular 
office an alien shall make his or her immigrant visa application. 
Currently, the first sentence of subsection (a) of Sec. 42.61 specifies 
that ``in ordinary circumstances'' an alien's application shall be 
processed and adjudicated by the consular office having jurisdiction 
over the alien's place of residence. The second sentence allows for an 
exception to this general rule in the case of an alien physically 
present in an area but not having a residence therein, if the alien can 
establish that he or she will remain in the area long enough to permit 
the application to be processed to a conclusion. The remainder of 22 
CFR 42.61(a) allows for acceptance of immigrant visa applications by 
other consular offices, either as a matter of discretion or at the 
direction of the Department.
    It is the Department's view that the existing regulatory text 
affords the Department the authority to make exceptions to the general 
rules concerning where an application for an immigrant visa shall be 
made for policy or operational reasons, including reasons of foreign 
policy, as may be necessary. Recently, however, questions have been 
raised whether such authority can properly be so imputed, given the 
phrasing of the text. Since these questions have been raised, the 
Department believes it to be appropriate to amend the text to make this 
authority explicit. In addition, the Department is taking the occasion 
to revise the text editorially for purposes of clarity and consistency 
of usage.
    The Department notes that this regulatory change is both 
interpretive and concerned with management and matters of foreign 
policy. The Department has nevertheless decided to provide for a 
thirty-day comment period.
    This rule is not 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 would not impose 
information collection requirements under the provisions of the 
Paperwork Reduction Act of 1980. This rule has been reviewed as 
required under Executive Order 12778 and certified to be in compliance 
therewith. This rule is exempt from review under Executive Order 12866, 
but has been reviewed internally by the Department to ensure 
consistency with the objectives thereof.

List of Subjects in 22 CFR Part 42

    Aliens, Application, Immigrants, Visas.

    Accordingly, it is proposed to amend 22 CFR Part 42 as follows:

PART 42--[AMENDED]

    1. The authority citation for Part 42 would be revised to read as 
follows:

    Authority: 8 U.S.C. 1104.

    2. Section 42.61 is amended by revising paragraph (a) to read as 
follows:


Sec. 42.61  Place of application.

    (a) Alien to apply in consular district of residence. Unless 
otherwise directed by the Department, an alien applying for an 
immigrant visa shall make application at the consular office having 
jurisdiction over the alien's place of residence. Also, unless 
otherwise provided by the Department, an alien physically present in an 
area but having no residence therein may make application at the 
consular office having jurisdiction over that area if the alien can 
establish that he or she will be able to remain in the area for the 
period required to process the application. Finally, a consular office 
may, as a matter of discretion, or shall, at the direction of the 
Department, accept an immigrant visa application from an alien who is 
neither a resident of, nor physically present in, the area designated 
for that office for such purpose. For the purposes of this section, an 
alien physically present in the United States shall be considered to be 
a resident of the area of his or her last residence prior to entry into 
the United States.
* * * * *
    Dated: April 21, 1994.
Mary A. Ryan,
Assistant Secretary for Consular Affairs.
[FR Doc. 94-10121 Filed 4-26-94; 8:45 am]
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