[Federal Register Volume 62, Number 248 (Monday, December 29, 1997)]
[Rules and Regulations]
[Pages 67563-67564]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-33691]
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DEPARTMENT OF STATE
Bureau of Consular Affairs
22 CFR Part 40
[Public Notice 2674]
VISAS: Public Charge
AGENCY: Department of State, Bureau of Consular Affairs.
ACTION: Interim rule with request for comments.
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SUMMARY: This rule amends Department of State regulations by
establishing uniform procedures for the acceptance of affidavits of
support by consular posts abroad as required by the Immigration and
Nationality Act (INA). This rule is necessary to ensure proper
adjudication of immigrant visas under the INA.
DATES: Effective Date: This interim rule is effective on December 19,
1997. Comment Date: Submit comments on or before February 27, 1998.
ADDRESSES: Please submit written comments to the Chief, Legislation and
Regulations Division, Visa Office, Room L603-C, SA-1, Washington, D.C.
20520-0106. Comments will be made available for public inspection at
the Department of State's Public Reading Room, 2201 C Street, NW,
Washington, DC, 20520.
FOR FURTHER INFORMATION CONTACT: Ron Acker, Visa Regulations
Coordinator, Legislation and Regulations Division, Visa Office, Room
L603-C, SA-1, Washington, DC, 20520-0106 ([email protected]
state.gov).
SUPPLEMENTARY INFORMATION: On September 30, 1996, the President signed
the Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(IIRIRA), Pub. L. 104 208, which, among numerous other changes, amended
section 212(a)(4) of the Immigration and Nationality Act (INA) to
provide that an alien is excludable or inadmissible to the United
States based upon the likelihood of becoming a public charge if the
alien is seeking an immigrant visa, admission as an immigrant, or
adjustment of status as: (a) An immediate relative, (b) a family-based
immigrant, or (c) an employment-based immigrant (if a sponsoring
relative is the petitioning employer or owns a significant ownership
interest in the entity that is the petitioning employer) unless the
alien is the beneficiary of an affidavit of support filed under INA
section 213A. INA 213A specifies the conditions that must be met in
order for an affidavit of support to be acceptable for use by a visa
applicant to establish eligibility under INA 212(a)(4)(C).
Under the provisions of IIRIRA (Title V, Subtitle C, Section
551(c)), the Attorney General is responsible for promulgating the
standard forms to be used in connection with the filing of affidavits
of support and in establishing the effective date upon which such forms
are required. The Immigration and Naturalization Service (INS)
published an interim rule on October 20, 1997 (Federal Register, Vol.
62, No. 202, pp. 54346-54356) describing the new ``Affidavit of
Support'' (Form I-864), and two ancillary forms, the ``Contract Between
Sponsor and Household Member'' (Form I-864A), and the ``Sponsor's
Notice of Change of Address'' (Form I-865). INS's rule included
procedural instructions for filling out the forms, and established
December 19, 1997 as the effective date on which these forms would be
required for submission to immigration and consular officers.
The net effect of the new affidavit of support is that it is must
be fully executed in compliance with the provisions of INA 213A in
order for an alien (as described above) to meet the requirements of INA
212(a)(4)(C). An affidavit of support that has been appropriately
executed and submitted does not, however, necessarily establish that an
alien is not within the purview of the public charge provisions of
212(a)(4)(A). That decision remains vested with the reviewing
immigration or consular officer, who must be satisfied that the alien
is otherwise not likely to become a public charge upon entering the
United States.
Accordingly, the Department is (1) adding new regulations at 22 CFR
40.41(b) and (c), (2) amending regulations at 22 CFR 40.41(a), (b), and
(d) to reflect the new affidavit of support requirements, and (3),
redesignating 22 CFR 40.41(b), (c), and (d) as 40.41(d), (e), and (f),
respectively. In addition, the current description of the poverty line
contained in new 40.41(f), formerly (d), is being eliminated and
replaced with a reference to new section, INA 213A(h), which contains
the definition of the poverty line to be used for 213A purposes. Since
both the old and the new description refer to the same poverty line
established by the Department of Health and Human Services, this change
will simply make uniform all references to the poverty line for
purposes of 212(a)(4) in accordance with the latest description. The
new (f) is also retitled to reflect the revised language.
Interim Rule
This rule modifies 22 CFR, Subchapter E, Subpart E to reflect
changes made by IIRIRA. Title V, Subtitle C, of IIRIRA, which is
implemented by this rule became effective December 19, 1997. The
issuance of this rule as an interim rule, with provisions for post-
promulgation public comments, is based upon the ``good cause''
exception found at 5 U.S.C. 553(b)(B) and 553(d)(3) because it
implements statutory provisions and an effective date set under
statutory authority.
Pursuant to Sec. 605(b) of the Regulatory Flexibility Act, the
Department has assessed the potential impact of this rule and it has
been determined, and the Assistant Secretary for Consular Affairs
hereby certifies, that it will not have a significant economic impact
on a substantial number of small entities. The rule has no economic
effect beyond that of the statutory requirements already in effect
which it implements.
As required by 5 U.S.C. chapter 8, the Department has screened this
rule and determined that it is not a major rule, as defined in 5 U.S.C.
80412.
This rule imposes no reporting or record-keeping action on the
public requiring the approval of the Office of Management and Budget
under the Paperwork Reduction Act.
This rule has been reviewed as required by E.O. 12988 and
determined to meet the applicable regulatory standards it describes.
Although exempted from E.O. 12866, this rule has been reviewed to
ensure consistency with it.
List of Subjects in 22 CFR Part 40
Aliens, Immigrants, Immigration, Nonimmigrants, Passports and
visas.
In view of the foregoing, 22 CFR is amended as follows:
[[Page 67564]]
PART 40--[AMENDED]
1. The authority citation for Part 40 is revised to read:
Authority: 8 U.S.C. 1104; Pub.L. 104-208, 110 Stat. 3009; 22
U.S.C. 2651a.
2. Section 40.41 is revised as follows:
Sec. 40.41 Public charge.
(a) Basis for Determination of Ineligibility. Any determination
that an alien is ineligible under INA 212(a)(4) must be predicated upon
circumstances indicating that, notwithstanding any affidavit of support
that may have been filed on the alien's behalf, the alien is likely to
become a public charge after admission, or, if applicable, that the
alien has failed to fulfill the affidavit of support requirement of INA
212(a)(4)(C).
(b) Affidavit of Support. Any alien seeking an immigrant visa under
INA 201(b)(2), 203(a), or 203(b), based upon a petition filed by a
relative of the alien (or in the case of a petition filed under INA
203(b) by an entity in which a relative has a significant ownership
interest), shall be required to present to the consular officer an
affidavit of support on a form that complies with terms and conditions
established by the Attorney General.
(c) Joint Sponsors. Submission of one or more additional affidavits
of support by a joint sponsor/sponsors is required whenever the
relative sponsor's household income and significant assets, and the
immigrant's assets, do not meet the Federal poverty line requirements
of INA 213A.
(d) Posting of Bond. A consular officer may issue a visa to an
alien who is within the purview of INA 212(a)(4) (subject to the
affidavit of support requirement and attribution of sponsor's income
and resources under section 213A), upon receipt of a notice from INS of
the giving of a bond or undertaking in accordance with INA 213 and INA
221(g), and provided further that the officer is satisfied that the
giving of such bond or undertaking removes the likelihood that the
alien will become a public charge within the meaning of this section of
the law and that the alien is otherwise eligible in all respects.
(e) Prearranged Employment. An immigrant visa applicant relying on
an offer of prearranged employment to establish eligibility under INA
212(a)(4), other than an offer of employment certified by the
Department of Labor pursuant to INA 212(a)(5)(A), must provide written
confirmation of the relevant information sworn and subscribed to before
a notary public by the employer or an authorized employee or agent of
the employer. The signer's printed name and position or other
relationship with the employer must accompany the signature.
(f) Use of Federal Poverty Line Where INA 213A Not Applicable. An
immigrant visa applicant, not subject to the requirements of INA 213A,
and relying solely on personal income to establish eligibility under
INA 212(a)(4), who does not demonstrate an annual income above the
Federal poverty line, as defined in INA 213A (h), and who is without
other adequate financial resources, shall be presumed ineligible under
INA 212(a)(4).
Dated: December 19, 1997.
Mary A. Ryan,
Assistant Secretary for Consular Affairs.
[FR Doc. 97-33691 Filed 12-24-97; 8:45 am]
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