[Federal Register Volume 61, Number 57 (Friday, March 22, 1996)]
[Rules and Regulations]
[Pages 11717-11721]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-7039]



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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: Final rule.

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SUMMARY: This rule amends the Immigration and Naturalization Service 
(the Service) regulations to 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 clarifies that 
carriers are liable for fines imposed under section 273 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 was 
necessary to conform the language of the regulations with the statutory 
provision that imposes fine liability on a carrier which transports an 
alien to the United States without the proper documentation.

EFFECTIVE DATE: March 22, 1996.

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 violations of section 
273(a) of the Act. Section 273(a) of the Act requires carriers bringing 
aliens into the United States to ensure that its passengers are in 
possession of a valid passport and unexpired visa, if a visa is 
required under the Act or regulations
    The regulations at 8 CFR 212.1(g) had the unintended effect of 
relieving the carrier of fine liability if the district director 
granted a waiver of the passport or nonimmigrant visa 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 regulation as creating a ``blanket'' waiver because 
of language in the regulation stated that ``a visa * * * is not 
required.'' The Board based its decision on whether an alien's 
admission with a waiver relieved the carrier of liability for a fine by 
interpreting the regulations in effect at the time involved. Matter of 
Plane ``CUT-604'', 7 I&N 701 (BIA 1958). If the regulations 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 for 
a discretionary waiver of the visa and passport requirements to be 
granted to a nonimmigrant on a case-by-case basis will not relieve the 
carrier of fine liability.
    This rule removes the language, ``[a] visa and a passport are not 
required of a nonimmigrant'' so 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 280 remain applicable and require no change.
    This rule further amends 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.
    On April 14, 1995, at 60 FR 19001-19002, the Immigration and 
Naturalization Service (the Service) published a proposed rule with 
request for comments in the Federal Register, in order to correct this 
loophole in the regulations which allowed carriers to transport 
improperly documented aliens to the United States without incurring 
fines under section 273 of the Act. Interested persons were invited to 
submit written comments on or before June 13, 1995. The following is a 
discussion of those comments received by the Service and the Service's 
response.

Discussion of Comments on the Proposed Rule

    The Service received four comments on the proposed rule. One 
commenter claimed the proposed change ``will have an effect repugnant 
to the intent of Congress, the existing regulation of the Attorney 
General and the intended effect of the current regulation.'' It must be 
emphasized that the Service policy of strictly enforcing the fine 
provisions of section 273 of the Act in appropriate cases is a 
continuation of a more than 70-year-old policy of carrying out 
Congress' intent to hold carriers responsible for passengers they have 
transported to the United States. The Board and the courts have 
consistently held that carriers must exercise reasonable diligence in 
boarding their passengers for transport to the United States and are 
subject to administrative fines for failure to do so, e.g., Matter of

[[Page 11718]]
Eastern Airlines, Inc., Flight #798, Int. Dec. 3110 (BIA 1989); Matter 
of M/V Guadalupe, 13 I&N Dec. 67 (BIA 1968); New York & Porto Rico S.S. 
Co. v. United States, 66 F.2d 523, 525 (2d Cir. 1933).
    The imposition of administrative fines in appropriate cases has 
long been an important tool in enforcing our immigration laws and 
safeguarding our borders. In enacting both section 273 of the Act of 
1952 as well as section 16 of the Immigration Act of 1924, the 
precursor of section 273, Congress intended to make the carrier ensure 
compliance with the requirements of the respective statutory 
provisions. See Joint Hearings on the Revision of Immigration, 
Naturalization, and Nationality Laws, Senate and House Subcommittees on 
the Judiciary, Testimony of Stuart G. Tipton, General Counsel, Air 
Transport Association of America at p. 294 (March 14, 1951); Matter of 
M/V ``Runaway'', 18 I&N Dec. at 128 (citing section 273 cases). Indeed, 
in enacting section 273 of the Act, Congress strengthened the previous 
penalty provisions, which only applied to carriers unlawfully 
transporting immigrants to this country, to apply to the unlawful 
transport of nonimmigrants as well. See Matter of S.S. Greystoke Castle 
and M/V Western Queen, 6 I&N Dec. 112, 114-15 (BIA, AG 1954); Legal 
Opinion of the INS General Counsel, 56336/273a at 6 (Sept. 3, 1953).
    The commenter further claims that ``Congress clearly contemplated 
situations whereby nonimmigrant aliens would need to travel to the 
United States without the formality of obtaining a passport or visa by 
enacting INA 212(d)(4)(A).'' Congress indeed contemplated a situation 
where this would arise. Nevertheless, the commenter failed to mention 
that a passport or visa may be waived only by ``the Attorney General 
and the Secretary of State acting jointly.'' Congress at no time 
envisioned that carrier representatives would be responsible for 
determining admissibility of aliens to the United States at the port of 
embarkation for any reason without prior authority from the Attorney 
General or Secretary of State.
    One commenter wrote that ``the motivation for the proposed rule is 
to circumvent the holding in Matter of ``Flight SR-4'', 10 I&N Dec. 197 
(BIA 1963) and Air BVI, LTD., Flight BL 410, SAJ 10/50.670, Decided by 
the Board August 26, 1992.'' The Service is not trying to circumvent 
these decisions; rather it is clarifying the regulation by amending it 
to conform to Congressional intent.
    Regarding fines even though an alien was subsequently admitted, a 
5th Circuit Court stated, in part:

    And intrinsically, [the] 1952 Act which included for the first 
time nonimmigrant aliens contains terms indicating quite 
persuasively that Congress carefully distinguished between penalties 
against the carrier and the ultimate admission of the aliens. The 
Peninsular & Occidental Steamship Company versus The United States, 
242 F. 2d 639 (5 Cir. 1957). See also the conclusions of the BIA in 
such cases as Matter of SS Florida, 5 I&N Dec. 85 (BIA 1954) and 
Matter of Plane ``F-BHSO'', 9 I&N Dec. 595 (BIA 1962).

    The amending of the regulation also parallels the granting of a 
visa waiver to a lawful permanent resident. In 8 CFR 211.1(b)(3) it 
reads, in part:

    Waiver of visas. An immigrant alien returning to an 
unrelinquished lawful permanent residence in the United States after 
a temporary absence abroad who satisfies the district director in 
charge of the port of entry that there is good cause for his failure 
to present an immigrant visa, Form I-151 or I-551, or reentry permit 
may, upon application on Form I-193, be granted a waiver of that 
requirement.

    The regulation at 8 CFR 212.1(g) is being amended to read, in part:

    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 clarification at 8 CFR 212.1(g) will give the Service the 
ability to exercise discretion to admit improperly documented 
nonimmigrants while penalizing carriers for the bringing of these 
aliens to the United States in violation of section 273 of the Act. 
This is similar to the granting of individual waivers to lawful 
permanent residents under 8 CFR 211.1(b)(3), which does not relieve the 
carrier of liability under section 273 of the Act. This has been the 
intent of Congress since the enactment of the Immigration Act of 1924 
which established section 16, the precursor to section 273 of the 
Immigration Act of 1952. This will clarify any ambiguity in the 
regulation regarding carriers' liability to ensure the transportation 
of properly documented aliens to the United States and the imposition 
of penalties for failure to do so.
    One commenter claimed that the regulatory change violates the 
Regulatory Flexibility Act (5 U.S.C. 605(b)) because the rule will have 
a significant impact on a substantial number of small entities. The 
Service disagrees. The number of aliens entering the United States 
without documentation for unforeseen emergent reasons is sufficiently 
low that there is no likely harm to any small carrier. According to the 
Department of State, very few aliens apply for emergency visa waivers. 
Furthermore, fines are not imposed on carriers that have properly 
screened their passengers for proper documentation required to enter 
the United States. These penalties are imposed only for those cases 
where the carrier has failed to properly screen its passengers and 
permitted improperly documented aliens to board its aircraft or vessel. 
No carrier, whether small or large, need suffer any penalties under 
section 273 of the Act if it properly screens its passengers. To this 
end, the Service has and will continue to conduct training for carriers 
upon request to improve a carrier's screening procedures and thereby 
reducing its fines under section 273 of the Act.
    In addition, carriers are having their fines burden reduced as a 
direct result of the passage of the Immigration and Nationality 
Technical Corrections Act of 1994, Public Law 103-416, which was signed 
by the President on October 25, 1994. Section 209(a)(6) Pub. L. 103-416 
contained a technical amendment which added section 273(e) to the Act. 
The addition of section 273(e) to the Act permits the Service to 
reduce, refund, or waive fines under section 273 of the Act pursuant to 
such regulations as the Attorney General shall prescribe in cases in 
which: (1) The carrier demonstrates that it had screened all passengers 
on the vessel or aircraft in accordance with procedures prescribed by 
the Attorney General, or (2) circumstances exist that the Attorney 
General determines would justify such reduction, refund, or waiver. The 
new legislation, corresponding regulations, and a Memorandum of 
Understanding (MOU) to be signed with individual carriers, will enable 
the Service to reduce, refund, or waive a fine imposed under section 
273 of the Act for a carrier that demonstrates successful screening 
procedures by achieving satisfactory performance in the transportation 
of properly documented aliens to the United States. The Service will 
reward those carriers that follow the terms of the legislation or MOU 
and continue to impose financial penalties on carriers that fail to 
properly screen passengers. Increased carrier training and increased 
carrier cooperation with the Service are also expected to contribute to 
a reduction in the arrival of improperly documented aliens to the 
United States. Regulations regarding fines mitigation will be published 
as a proposed rule,

[[Page 11719]]
with comment period, in the Federal Register.
    The commenter also claims that the proposed rule constitutes a 
``significant regulatory action.'' The Service does not agree. This 
rule clarifies Sec. 212.1(g) to conform to Congressional intent on the 
boarding of improperly documented aliens. In spite of the Board's 
holdings to the effect that the old regulation did not allow the 
Service to fine a carrier for bringing nonimmigrants to the United 
States without the required documents when a visa waiver is 
subsequently granted at the port of entry, the Board has never held 
that the carrier was not liable for fines in these circumstances under 
section 273 of the Act. Consequently, this rule simply amends the 
language to conform to Congressional intent, as recognized by the 
Board.
    The commenter correctly states that ``the legitimate goal of the 
Service is to protect the borders of the United States but only to the 
extent authorized by Congress and the Attorney General.'' He 
incorrectly states ``no national security concern * * * would be served 
by the proposed change.'' The Service disagrees with this assertion. 
The Service is charged with continually encouraging carriers to 
properly screen their passengers prior to embarkation for the United 
States. Proper screening by trained carrier personnel overseas can and 
should prevent the arrival to the United States of aliens not in 
possession of proper documentation. Travel to the United States should 
be accomplished through the orderly procedures presently in place to 
ensure a legal flow of immigrants and nonimmigrants. Furthermore, a 
carrier cannot rely on the passenger's urgent need to travel on short 
notice, since considerations of personal expediency do not constitute 
due diligence contemplated by the statute (Matter of Aircraft ``VT 
DJK'', 12 I. & N. Dec. 267 (BIA 1967).
    One commenter claimed it ``defied logic [in cases where] * * * the 
[d]istrict [d]irector was satisfied that the alien was unable to 
present the required documents and, therefore, found good cause to 
grant a waiver'' that the Service should fine the carrier. The reason 
that most waivers are given in the first place is not so much that the 
district director was satisfied that the alien was unable to present 
the required documents, but rather that the Service showed compassion 
to the alien for the mistake of the carrier in boarding the alien and, 
further, determined that returning the alien to his or her port of 
embarkation would impose a significant hardship on the alien. This rule 
will permit the Service to continue to grant visa waivers in cases 
involving aliens not in possession of proper documentation to enter the 
United States, when otherwise admissible, but properly fine the carrier 
for allowing the alien to arrive in the United States in the first 
place.
    One commenter claims that this rule will have an adverse effect on 
family well-being. Another commenter stated ``the proposed rule will 
adversely affect the travelling public and reflect negatively upon the 
Service and air carriers. * * *'' The Service disagrees. The Department 
of State and the Service already have in place the proper procedures 
which aliens, in emergent circumstances, may utilize to obtain 
authorization for travel to the United States without a visa or 
passport. The Service does not perceive that family well-being will be 
affected whatsoever by this rule. Aliens who are not properly 
documented for travel to the United States must obtain permission from 
the Department of State and the Service before boarding a carrier. 
Accordingly, a carrier should not, under any circumstances, board an 
improperly documented alien without prior authorization from the 
Department of State and the Service.
    The commenter further claims that the carrier should not be 
``penalized for showing the same compassion by transporting the 
passenger that the Service evidences by issuing a waiver.'' Again the 
service disagrees. The decision to admit an alien without proper 
documentation is clearly vested in the Attorney General and the 
Secretary of State and not in the carrier.
    One commenter is concerned about the Service's policy of proceeding 
with fines against carriers in certain cases involving improperly 
documented aliens arriving because ``emergency medical treatment, for 
funerals, for visiting critically injured or dying relatives, and other 
`unforeseen emergencies.' '' The commenter further claims that ``a 
carrier must have some latitude to determine that the passenger is 
travelling due to a valid emergency, such as a death in the family, a 
medical emergency, or the loss of all documents due to robbery, etc.'' 
The Service again disagrees. The statute vests discretionary authority 
in the Service and not in the carrier. Furthermore, as stated 
previously, procedures presently exist for aliens to obtain emergency 
waivers of both passport and visa from the Department of State with 
concurrence from the Service. According to section 212(d)(4) of the 
Act, as amended by the Immigration Act of 1990 (Pub. L. 101-649, dated 
November 29, 1990, 104 Stat. 5076), ``[e]ither or both of the 
requirements of paragraph (7)(B)(i) of subsection (a) may be waived by 
the Attorney General and the Secretary of State acting jointly (A) on 
the basis of unforeseen emergency in individual cases. * * *''
    Furthermore, Sec. 41.3 of 22 CFR states:
    Under the authority of INA 212(d)(4), the documentary requirements 
of INA 212(a)(7)(B)(i)(I), (i)(II) may be waived for any alien in whose 
case the consular officer serving the port or place of embarkation is 
satisfied after consultation with, and concurrence by, the appropriate 
immigration officer, that the case falls within any of the following 
categories:
    * * *
    (d) Emergent circumstances; visa waiver. An alien well and 
favorably known at the consular office, who was previously issued a 
nonimmigration visa which has expired, and who is proceeding directly 
to the United States under emergent circumstances which preclude the 
timely issuance of a visa.
    The procedures for aliens seeking a passport or visa waiver for 
emergent reasons are also described in Title 9 of the Foreign Affairs 
Manual (FAM) part 41, section 3, in part, as follows:

Waivers by Joint Action of Consular and Immigration Officers of 
Passport and/or Visa Requirements

    Under the authority of INA 212(d)(4), the documentary requirements 
of INA 212(a)(7)(B)(i)(I), (i)(II), may be waived for any alien in 
whose case the consular officer serving the port or place of 
embarkation is satisfied after consultation with, and concurrence by, 
the appropriate immigration officer, that the case falls within any of 
the following categories:
(a) Residents of Foreign Contiguous Territory; Visa and Passport Waiver
    * * *;
(b) Aliens for Whom Passport Extension Facilities Are Unavailable; 
Passport Waiver
    * * *;
(c) Aliens Precluded From Obtaining Passport Extensions by Foreign 
Government Restrictions; Passport Waiver
    * * *;
(d) Emergent Circumstances; Visa Waiver
    An alien well and favorably known at the consular office, who was 
previously issued a nonimmigrant visa which has expired, and who is 
proceeding directly to the United States under emergent circumstances 
which preclude the timely issuance of a visa.

[[Page 11720]]

(e) Members of Armed Forces of Foreign Countries; Visa and Passport 
Waiver
    * * *;
(f) Landed Immigrants in Canada; Passport Waiver
    * * *;
(g) Authorization to Individual Consular Office; Visa and/or Passport 
Waiver
    An alien within the district of a consular office which has been 
authorized by the Department, because of unusual circumstances 
prevailing in that district, to join with immigration officers abroad 
in waivers of documentary requirements in specific categories of cases, 
and whose case falls within one of those categories.

Notes

N1  Transporting Undocumented Aliens to United States
    Posts must inform carriers inquiring about transporting an 
undocumented alien that they would be subject to a fine unless such 
alien is within one of the categories listed in 22 CFR 41.2 or 41.3.
N2  Areas of Responsibility of Immigration Officers
    Consular officers shall address requests for concurrence in waivers 
of passport and visa requirements to the immigration officer in charge, 
in care of the appropriate post as indicated in 9 FAM Part IV.
N3  Furnishing Information Concerning Waivers to Immigration Officers
    * * *
    (7) A brief summary of the emergent circumstances surrounding the 
case which must include information indicating that all of the 
requirements of the subparagraph of 22 CFR 41.3 under which the waiver 
is recommended have been met; and
    * * *
N4  Issuing Documents to Waiver Beneficiaries
    * * *.
    Aliens in emergent circumstances can and should obtain a visa or a 
waiver of visa, if required, prior to boarding. These procedures are in 
place to ensure that aliens are not allowed to arrive in the United 
States without first being properly screened, unless waived by statute.
    The Service respectfully declines the invitation of one commenter 
to ``develop an agreed set of criteria to define an unforeseen 
emergency.'' There already exist procedures an alien must follow to 
apply for entry into the United States under emergent circumstances as 
previously explained. The Service expects aliens to follow these 
emergency procedures to obtain the proper documentation to enter the 
United States if they lack the necessary documentation. In instances of 
emergent circumstances and travel requests occurring after the normal 
consulate business hours, consular officers are available for visa or 
passport waiver authorization on a case-by-case basis. To allow 
carriers the authority to determine admissibility of aliens not in 
possession of proper documentation at the port of embarkation would 
seriously undermine the enforcement of the Act and the security of the 
United States, and would circumvent existing immigration laws and 
regulations. As the carrier organizations admit, only immigration 
officers can determine the admissibility of an alien to the United 
States. The Service is not in a position to abdicate its authority or 
responsibility to safeguard the borders of the United States as 
Congress has mandated.
    One commenter stated that the Service should never consider 
granting a visa waiver under emergent circumstances. The commenter 
states that ``under no circumstances or unforeseen emergencies * * * 
should [a government body] be authorized to grant entry into the United 
States [to any alien] without valid documentation.'' Furthermore, the 
same commenter concluded, ``in the event that someone attempts to enter 
into the United States without proper credentials, they should be fined 
and deported to the place of original entry. * * *'' The statute 
authorizes a waiver of the documentary requirements in appropriate 
circumstances. In the case of a nonimmigrant who is otherwise 
admissible, a favorable exercise of that discretion is often 
appropriate to avoid unnecessary hardship.

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.

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.

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, 1187, 1225, 
1226, 1227, 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 a 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 one or more of the paragraphs (a) through (f) or (i) of 
this section. Upon a nonimmigrant's application on Form I-193, a 
district director at a port of entry may, in the exercise of his or her 
discretion, on a case-by-case basis, waive the

[[Page 11721]]
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: December 11, 1995.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 96-7039 Filed 3-21-96; 8:45 am]
BILLING CODE 4410-10-M