[Federal Register Volume 60, Number 72 (Friday, April 14, 1995)]
[Proposed Rules]
[Pages 19001-19002]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-9272]



 ========================================================================
 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 60, No. 72 / Friday, April 14, 1995 / 
Proposed Rules  
[[Page 19001]]

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 212

[INS No. 1669-94]
RIN 1115-AD77


Waiver of Certain Types of Visas

agency: Immigration and Naturalization Service, Justice.

action: Proposed rule.

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summary: This rule proposes to amend the Immigration and Naturalization 
Service (the Service) regulations which permit district directors, in 
individual cases, to waive nonimmigrant visa or passport requirements 
under section 212(d)(4)(A) of the Immigration and Nationality Act (the 
Act), if satisfied that a nonimmigrant alien is unable to present these 
documents because of an unforeseen emergency. The rule will clarify 
that carriers are liable for fines imposed under section 273(a) of the 
Act for bringing nonimmigrants to the United States who do not have a 
valid passport or nonimmigrant visa, or border crossing identification 
card, even if a waiver of these documents is granted by the district 
director at the time of admission into the United States. This change 
is necessary to conform the language of the regulations with the 
statutory requirement that a fine be imposed when a nonimmigrant is 
transported to the United States without the proper documentation.

DATES: Written comments must be submitted on or before June 13, 1995.

addresses: Please submit written comments, in triplicate, to the 
Director, Policy Directives and Instructions Branch, Immigration and 
Naturalization Service, 425 I Street NW., Room 5307, Washington, DC 
20536. Please include INS number 1669-94 on your correspondence to 
ensure proper and timely handling.

for further information contact: Robert F. Hutnick, Assistant Chief 
Inspector, Inspections Division, Immigration and Naturalization 
Service, 425 I Street NW., room 7228, Washington, DC 20536, telephone 
number (202) 616-7499.

supplementary information: Section 212(d)(4)(A) of the Act allows the 
Attorney General to waive the requirement that a nonimmigrant alien be 
in possession of a visa or passport if he or she is unable to present 
the necessary documents due to an unforeseen emergency. Section 273(b) 
of the Act imposes a fine upon a carrier for bringing aliens into the 
United States without proper documentation. The wording of the current 
regulation at Sec. 212.1(g) has the unintended effect of relieving the 
carrier of fine liability if the district director granted a waiver of 
the nonimmigrant visa or passport requirement. In Air BVI Ltd., Flight 
BL 410, (BIA Unpublished Decision No. SAJ 10/50.670, August 26, 1992), 
the Board of Immigration Appeals (the Board) characterized the current 
regulation as creating a ``blanket'' waiver because of language in the 
regulation stating that ``a visa * * * is not required.'' The Board 
bases its decision on whether an alien's admission with a waiver 
relieves the carrier of liability to find by interpreting the 
regulations in effect at the time involved. Matter of Plane ``CUT-
604'', 7 I&N 701 (BIA 1958). If the regulation creates a blanket 
waiver, by stating that no visa is required, no fine liability is 
incurred by the carrier. By contrast, a regulation that provides an 
``individual'' waiver, by requiring a visa and a passport to be 
presented by a nonimmigrant, but providing for a waiver of this 
requirement, will not relieve the carrier of fine liability.
    The rule proposes to remove the language, ``A visa and a passport 
are not required of a nonimmigrant * * *'' and clarifies that even when 
the district director waives the documentary requirements in the 
exercise of his or her discretion, on a case-by-case basis, and admits 
such a nonimmigrant to the United States, such admission will not 
eliminate the carrier's fine liability for bringing that alien to the 
United States without proper documentation (Matter of Plane ``CUT-
604''). The fine procedures at 8 CFR part 280 remain applicable and 
require no change.
    This rule further proposes to amend Sec. 212.1(g) by removing the 
provision regarding waivers of the visa requirement granted pursuant to 
section 212(d)(4)(A) of the Act in the case of a national or resident 
of Cuba. This action is being taken because this provision is obsolete.

Regulatory Flexibility Act

    The Commissioner of the Immigration and Naturalization Service, in 
accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has 
reviewed this regulation and, by approving it, certifies that the rule 
will not have significant economic impact on a substantial number of 
small entities. This rule merely removes any ambiguity between the 
current regulations and section 273 of the Act.

Executive Order 12866

    This rule is not considered by the Department of Justice, 
Immigration and Naturalization Service, to be a ``significant 
regulatory action'' under Executive Order 12866, section 3(f), 
Regulatory Planning and Review, and the Office of Management and Budget 
has waived its review process under section 6(a)(3)(A).

Executive Order 12612

    The regulation proposed herein 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 Executive Order 12612, it is determined that this rule 
does not have sufficient federalism implications to warrant the 
preparation of a Federalism Assessment.

Executive Order 12606

    the Commissioner of the Immigration and Naturalization Service 
certifies that she has assessed this rule in light of the criteria in 
Executive Order 12606 and has determined that this regulation will not 
have an impact on family well-being.

Paperwork Reduction Act

    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, Display of Control 
Numbers. [[Page 19002]] 

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 proposed to be 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, paragraph (g) is revised to read as follows:


Sec. 212.1  Documentary requirements for nonimmigrants.

* * * * *
    (g) Unforeseen emergency. A nonimmigrant seeking admission to the 
United States must present an unexpired visa, and passport valid for 
the amount of time set forth in section 212(a)(7)(B) of the Act, or a 
valid border crossing identification card at the time of application 
for admission, unless the nonimmigrant satisfies the requirements 
described in paragraphs (a) through (f) and (i) of this section. Upon a 
nonimmigrant's application on Form I-193, a district director at a 
Port-of-Entry may, in an exercise of his or her discretion, on a case-
by-case basis, waive the documentary requirements, if satisfied that 
the nonimmigrant cannot present the required documents because of an 
unforeseen emergency. The district director or the deputy Commissioner 
may at any time revoke a waiver previously authorized pursuant to this 
paragraph and notify the nonimmigrant in writing to that effect.
* * * * *
    Dated March 15, 1995.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 95-9272 Filed 4-13-95; 8:45 am]
BILLING CODE 4410-10-M