[Federal Register Volume 59, Number 150 (Friday, August 5, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-19090]


[[Page Unknown]]

[Federal Register: August 5, 1994]


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DEPARTMENT OF STATE

Bureau of Consular Affairs

22 CFR Part 42

[Public Notice 2045]

 

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

AGENCY: Bureau of Consular Affairs, State.

ACTION: Final rule.

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SUMMARY: This rule amends 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.

EFFECTIVE DATE: September 6, 1994.

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 28, 1994, the Department published a proposed rule (59 FR 
21948) to amend 22 CFR 42.61(a) to make explicit that the Department 
has the authority to make exceptions, for policy or operational 
reasons, to the general rules concerning where an application for an 
immigrant visa shall be made. The period for comment on the proposal 
ended on May 31, 1994.
    The Department received one comment during the period. The 
commenter opposed promulgation of the proposed revision on several 
bases, one of which appears to derive from a misreading of the 
legislative history of the 1952 Act. Accordingly, it appears that a bit 
of the history of this provision may be appropriate.
    The Immigration Act of 1924 did not contain a specific provision 
regarding place of application for an immigration visa. Instead, it 
simply authorized the Secretary of State to make regulations regarding 
the ``form'' in which such applications were to be made.
    For many years the Department's instructions on the subject of 
place of application were included in Visa Supplement A, which 
contained a series of Notes for the guidance of consular officers in 
processing visa applications. As of November 1, 1940, Note 87 read as 
follows:
    ``Aliens will ordinarily make their applications for immigration 
visas to the consul in whose district they reside.
    ``The applications of nonquota immigrants may be accepted outside 
their home districts provided they present satisfactory evidence to the 
consul of their nonquota status under section 4 of the Act and of their 
admissibility to the United States under the immigration laws. If such 
satisfactory evidence is not produced the consul to whom the alien 
applies may request the assistance of the consul in the alien's home 
district in investigating the case or refer the applicant to that 
consul.
    ``The application of quota immigrants may be accepted outside their 
home districts provided--
    ``(1) A quota number is available or can be obtained for the 
issuance of the visa.
    ``(2) The consul is satisfied that in issuing the visa the alien 
will not be accorded undue priority over other applicants awaiting 
their turns in the alien's home district.
    ``(3) The alien presents satisfactory evidence to the consul of his 
admissibility into the United States under the immigration laws. If 
such satisfactory evidence is not produced the consul may request the 
assistance of the consul in the alien's home district in investigating 
the case, or refer the applicant to that consul.''
    In 1946 the Department promulgated formal regulations governing the 
visa process. After a redesignation of the regulations in 1948, the 
regulation concerning place of immigrant visa application read as 
follows:
    ``42.317 Where immigration visa application may be made. (a) An 
application for an immigration visa may be made at any American 
consular office, or other office specifically designated, which has 
been authorized to issue immigration visas. No consular agency may 
issue immigration visas.
    ``(b) An alien ordinarily should make his application for an 
immigration visa at the American consular office in his foreign home 
district. An alien who deliberately leaves his foreign home district 
for the purpose of making an application for an immigration visa 
elsewhere will be referred back to the American consular office in his 
home district. However, an alien may apply for an immigration visa at a 
consular office outside his foreign home district if the consular 
officer to whom he applies is satisfied:
    ``(1) That the alien has a bona-fide reason for applying outside of 
his foreign home district;
    ``(2) Of the alien's true identity;
    ``(3) That the alien has no adverse record in his foreign home 
district which would preclude the issuance of an immigration visa to 
him; and
    ``(4) That the alien is in possession of all the `available' 
documents which can be obtained from his home district.
    ``(c) In no case of an adult who is not well and favorably known to 
the principal consular officer should an immigration visa be issued 
outside of the alien's home foreign district without notification to, 
and receipt of clearance from, the consular officer in the alien's 
foreign home district, the principal consular office in the foreign 
country of the alien's nationality, or the principal consular office in 
the foreign country of the alien's birth, whichever is the nearest 
office most likely to have a previous record regarding the alien.
    ``(d) For the purposes of this section an alien's foreign home 
district shall ordinarily be considered as that district of a foreign 
country in which the alien has a domicile, or in which he has lived for 
the last five years. However, an alien who has in good faith abandoned 
his domicile in his former home country without any purpose of 
circumventing the immigration laws of the United States may have his 
visa application accepted at an American consular office in the 
district in which he may be temporarily residing or sojourning while 
awaiting an opportunity to immigrate into the United States. In such 
cases, however, the provisions of paragraphs (b) and (c) of this 
section are applicable.
    ``(e) Questionable cases may be reported to the Department for a 
ruling on the question of jurisdiction.''
    This regulation remained in effect until promulgation of the 
revised visa regulations implementing the Immigration and Nationality 
Act of 1952.
    The pertinent provision of the Immigration and Nationality Act--
section 222(a)--is similar to its predecessor--section 7 of the 
Immigration Act of 1924--but is also different from it in very 
significant ways. Unlike its predecessor, which was silent on the 
subject of place of application, section 222(a) specifically authorizes 
the Secretary of State to provide by regulation for place of 
application. The legislative process which led to this provision is of 
interest because the commenter apparently encountered a portion of it 
and misunderstood what was occurring.
    As introduced, both H.R. 5678 (Cong. Walter) and S. 2550 (Sen. 
McCarran) included in the proposed new section INA 222(a) the following 
sentence--``Such application shall be filed only with the consular 
officer in whose district the applicant shall have established his 
residence, except that an application for an immigrant visa under the 
Displaced Persons Act of 1948, as amended, and under INA 101(a)(27) may 
be filed with such consular officer as may be designated by 
regulations.''
    During the legislative process in the Senate, this sentence 
remained unchanged and was, thus, a part of the bill when it was 
approved by the Senate. In the House, however, the Judiciary Committee 
approved a series of amendments to Mr. Walter's original text, one of 
which (Amendment 9) deleted the sentence from H.R. 5678. The text of 
Amendment 9 appears at page 2 of House Report 1365 of February 14, 
1952, which accompanied H.R. 5768, and there is, at page 54 of the 
Report, a paragraph which explains the amendment and the thinking of 
the Committee in making it. The paragraph, in its entirety, reads as 
follows:
    ``Amendment 9 (to sec. 222) reflects the committee's cognizance of 
the unprecedented number of persons who have been uprooted and 
dislocated during World War II or due to events subsequent thereto. The 
amendment is designed to alleviate hardship which might be caused by a 
rigid requirement that visa applications `shall be filed only with the 
consular officer in whose district the applicant shall have established 
his residence.' It is believed that the Secretary of State will, by 
regulations provide for a more flexible requirement regarding the place 
of filing of visa applications in both nonimmigrant and immigrant 
cases. Existing regulations could very well serve as a pattern for the 
new rules to be promulgated.''
    As a result of this particular amendment, H.R. 5678, as approved by 
the House of Representatives, contained no statutory provision whatever 
regarding place of application. Thus, the question of how to deal with 
place of application for an immigrant visa had to be disposed of in the 
conference on the differing House and Senate versions. The Conference 
Report on H.R. 5678--House Report 2096 of June 9, 1952--sets forth the 
text of the Immigration and Nationality Act, as enacted. The sentence 
establishing the restrictive rule about place of application was 
dropped and the phrase ``and at such place'' was inserted in the first 
sentence of section 222(a). While the Statement of Managers on the Part 
of the House (at pp. 127-29 of House Report 2096) is silent on this 
subject and there is no statement of the Senate managers, the 
Department believes it fair to conclude that the Congress, after due 
consideration of the issue, consciously decided to leave the 
determination of place of immigrant visa application to the Secretary 
of State and to make that decision explicit by codifying it.
    The commenter contended that the purpose of the Congress was ``to 
reduce the burden on displaced aliens in the visa application process'' 
and quoted from the House Report statement reproduced above in support 
of this contention. The commenter omitted the last two sentences of the 
paragraph and appears to have misunderstood the point being made.
    In reality, the Committee was acting to preserve the status quo 
insofar as the filing of immigrant visa applications was concerned. As 
is clear from the discussion above, the ultimate outcome was to 
preserve the status quo, but to make explicit the Secretary's authority 
to determine by regulations the place of immigrant visa application by 
codifying it in the first sentence of section 222(a) of the Act.
    Thus, there is clear connection between the regulations 
implementing the Immigration Act of 1924 and those implementing the 
Immigration and Nationality Act, as amended. Moreover, it is clear that 
the basis of the regulations simply has not been that asserted by the 
commenter. The commenter sees the regulations governing place of 
application as intended to benefit alien visa applicants. Quite to the 
contrary, while the Department has attempted to give aliens broad 
notice of the procedures that will generally apply in ``ordinary 
circumstances,'' it is clear that the regulations have always been 
intended for the benefit of the Government, giving it the flexibility 
to decide where immigrant visa applications will be processed. This 
flexibility has traditionally been important for two significant 
reasons.
    First, there has always been a profound concern that an alien not 
avoid meaningful examination of his or her admissibility by having the 
visa application processed by a consular office in an area remote from 
his or her country of residence. Insofar as the constraints in the 
resources of a particular consular office render knowledgeable 
assessment of the application more difficult, the workload management 
issues discussed below are also relevant here.
    Second, the Department has always had major concerns about the 
management of the consular function. There has never been a time when 
the Department has not had constraints on its resources. Consular 
staffing has been subject to those constraints as has every other 
aspect of the Department's operations. For that reason, it has always 
been of great importance to the Department both to have the authority 
to apportion available resources in a manner responsive to the level of 
demand for services and to have a basis for predicting levels of 
demand. The ability to specify where intending immigrants will be 
authorized to apply for an immigrant visa is crucial from both points 
of view.
    In addition, it is noteworthy that the Department frequently has to 
adjust its handling of the visa workload because of world events. The 
statutory scheme, by leaving the place of application to be determined 
under Departmental regulations, allows this flexibility.
    The commenter also expressed concern about the fact that the 
current regulation allows for the processing of an application by a 
consular office in an area where the alien is physically present but 
has no residence if the alien ``expects'' to remain in the area 
throughout the necessary processing time while the proposed regulation 
would require the alien to establish his or her ability to remain there 
for that time. The commenter sees that change as being of major 
significance.
    The Department believes that this concern ignores reality and that 
the change in wording merely reflects that reality. A consular officer 
will not ordinarily accept an alien's assertion that he or she expects 
to remain in the area for the requisite period of time without a basis 
for believing the assertion to be true. Thus, the consular officer will 
ordinarily inquire further into the matter if the alien merely makes 
the bald assertion with no explanation for its basis. Moreover, it is 
the Department's position that a consular officer may properly decline 
to accept the application for processing if it reasonably appears that 
the alien's asserted expectation is unrealistic or otherwise ill-
founded.
    In light of the foregoing, the Department believes that the 
proposed change in wording does not have the significance the commenter 
apparently has ascribed to it.
    The commenter asserts that incorporation into the proposed 
regulation of the phrase ``Unless otherwise directed by the 
Department'' has the effect of rendering the regulation meaningless. 
The Department strongly disagrees.
    As pointed out in the commentary accompanying the proposed rule, 
the Department's position is that it has always had the authority 
reflected in this phrase and that this proposal does nothing more than 
make explicit what has always been implicit. Moreover, this comment 
presumes that the Department has in the past made, or intends in the 
future to make, frivolous use of this authority. The Department can 
find nothing objectionable in the establishment of a general rule, 
which will apply and guide consular officers in all normal 
circumstances, but which may be modified by the Department as necessary 
in those situations in which operational or policy considerations 
require it.
    Finally, the commenter has asserted that the first and second 
sentences of the proposed regulation have the effect of requiring that 
an alien permitted to apply at the consular office in the area in which 
he or she is physically present also apply at the consular office in 
the area of the alien's residence. The Department wishes to ensure the 
commenter that it had no intention of producing such a state of 
affairs.
    A review of prior versions of this regulation indicates that, prior 
to the 1987 recodification of the visa regulations, the concepts now 
set forth in several shorter sentences were included in a single long 
compound sentence. It is apparently the division of the regulations 
into shorter sentences which has created the doubt in the commenter's 
mind about the Department's intentions here. Accordingly, the 
Department has decided that the first two sentences of the proposed 
text should be editorially amended to read as follows:
    ``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; except that, 
unless otherwise directed 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.''
    While there appears to have arisen a general prejudice against the 
compound sentence in recent years, the Department trusts that, in this 
case, it will be seen as clarifying rather than obscuring the issue.
    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 E.O. 12778 and certified to be in compliance therewith. 
This rule is exempt from review under E.O. 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, 22 CFR Part 42 is amended as follows:

PART 42--[AMENDED]

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

    Authority: 8 U.S.C. 1104; 8 U.S.C. 1202.

    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; except that, unless 
otherwise directed 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: August 1, 1994.
Mary A. Ryan,
Assistant Secretary for Consular Affairs.
[FR Doc. 94-19090 Filed 8-4-94; 8:45 am]
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