[Federal Register Volume 63, Number 4 (Wednesday, January 7, 1998)]
[Rules and Regulations]
[Pages 669-671]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-87]


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DEPARTMENT OF STATE

22 CFR Parts 40 and 41

[Public Notice 2665]


Bureau of Consular Affairs; Documentation of Nonimmigrants Under 
the Immigration and Nationality Act, as Amended--Place of Application

AGENCY: Bureau of Consular Affairs, DOS.

ACTION: Interim rule with request for comments.

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SUMMARY: This rule results from a change in the law. A recent amendment 
stated that, if a nonimmigrant stays in the United States longer than 
permitted, the visa of that person is no longer valid. Only a new 
nonimmigrant visa issued in the country of that person's nationality 
will be valid for further entry into the United States. If the 
Secretary of State has determined that extraordinary circumstances 
exist, however, issuance of a new nonimmigrant visa in another country 
will be acceptable. This rule, therefore, amends the regulation 
pertaining to place of application to require such a person to apply in 
the country of his or her nationality, sets forth some exceptions based 
on extraordinary circumstances and defines the conditions for 
determining ``extraordinary circumstances.''

DATES: This interim rule is effective January 7, 1998. Written comments 
are invited

[[Page 670]]

and must be received on or before March 9, 1998.

ADDRESSES: Written comments may be submitted, in duplicate, to the 
Chief, Legislation and Regulations Division, Visa Services, Department 
of State, Washington, DC 20520-0106.

FOR FURTHER INFORMATION CONTACT:
H. Edward Odom, Chief, Legislation and Regulations Division, Visa 
Services, Department of State, Washington, DC 20520-0106, (202) 663-
1204.

SUPPLEMENTARY INFORMATION: This rule amends both Part 40 and Part 41 of 
Title 22 of the Federal Code of Regulations. It implements the 
provisions of Section 632 of the Illegal Immigration Reform and 
Immigrant Responsibility Act of 1996 (IIRIRA) with respect to the place 
of application for nonimmigrants who have voided their previous visas 
by overstaying the authorized period. Section 632 added a new 
subsection (g) to INA 222 which renders the visas of such nonimmigrants 
void.
    Part 40 of 22 CFR sets forth the various regulations pertaining to 
ineligibility under the INA. It is amended herein to include section 
40.68, previously reserved, under the title ``Aliens Subject to INA 
222(g)''. This new section states that any alien subject to INA 222(g) 
is ineligible for a new nonimmigrant visa unless applying for it in 
compliance with the place of application requirements of 22 CFR 41.101.
    This rule then amends Section 41.101, which currently sets forth 
the regulations for the normal place of application for a nonimmigrant 
visa. It first redesignates the current paragraph (b) of 22 CFR 41.101 
as paragraph (e). It then inserts a new paragraph (b) to include 
requirements for most aliens subject to the provisions of INA 222(g) to 
apply in the country of nationality. It also adds a new paragraph (c) 
identifying certain extraordinary circumstances that permit some such 
persons to apply in other specified countries. A new paragraph (d) 
defines certain relevant terms.
    Proposed 22 CFR 41.101(b) requires an alien subject to INA 222(g) 
to apply in a consular district which is in, or includes, his or her 
country of nationality unless the applicant is within stated 
exceptions. This regulation then provides in paragraph (c) (1) through 
(5) for certain varying extraordinary circumstances.
    Paragraph (c)(1) relates to those for whom circumstances not under 
the control of the alien rendered the prior visa void under INA 
222(g)(1). Essentially, this subparagraph exculpates certain aliens 
whose ``overstay'' was through no fault of their own and for whom there 
is a clear national interest in not requiring the delay and expense of 
returning to their place of nationality. Specifically, this regulation 
excepts those physicians serving in underserved areas of the United 
States under the provisions of INA 214(k) for whom a waiver of the 
foreign residence requirement under INA 212(e) or a petition to accord 
H-1B status was filed prior to the end of their authorized period of 
stay but that period expired during the adjudication of those 
applications. It is in the interest of the United States that such 
medical care-givers be able to enter on (or return to) their duties in 
the underserved area without unnecessary delays often caused by lengthy 
travel. Moreover, their sponsors can more fruitfully use the money 
required for such travel for other health purposes. Subparagraph (c)(2) 
provides for the possibility of further such determinations.
    The title of IIRIRA Section 632 is ``Elimination of Consulate 
Shopping for Visa Overstays.'' It seems clear from both the title and 
the text of the provision that the Congress intended that future visa 
applications of period-of-stay violators should be adjudicated by those 
best situated to assess the bona fides of the nonimmigrant visa 
applicant; i.e., Congressional intent lay in requiring special scrutiny 
of ``overstay'' visa applicants.
    Most people live in the country of their nationality, which the 
statute designates as the proper place of application for aliens 
subject to INA 222(g). Many other people, however, live elsewhere. The 
best place to adjudicate bona fides is not, in all probability, in the 
country of nationality in such cases. If an alien has spent years 
outside his or her country of nationality, returning there may not 
provide the special scrutiny desired by the Congress. Applying where 
one lives probably will. For this reason, Section 41.101(c) (3) and (4) 
propose other places of application for certain individuals subject to 
INA 222(g)(1).
    Subparagraph (c)(3) requires aliens subject to INA 222(g) who are 
residents of a third country to apply in the country of residence. 
Subparagraph (c)(4) directs a national and resident of a country in 
which there is no United States consular office to apply in the country 
designated by the Department to accept immigrant visa applications from 
persons of that nationality. This latter directive is in accordance 
with INA 222(g)(2)(A) which authorizes the Secretary to specify the 
place of application for such aliens. Subparagraph 41.101(c)(5) 
addresses another circumstance not falling within the norm: dual 
nationals. A dual national must apply in the county of residence.
    Paragraph (d) defines ``extraordinary circumstances'' and 
``nationality'' with respect to stateless persons. For purposes of visa 
issuance in the context of INA 222(g), a stateless person shall be 
considered to be a national of the country which issued his or her 
travel document.
    Section 41.121(a), ``Grounds of refusal'', is also amended to 
include INA 222(g).

Interim Rule

    The provision of law being implemented became effective on 
enactment of IIRIRA, September 20, 1996, and consular officers have 
been complying with it based on guidance essentially akin to that in 
this interim rule but not yet codified in regulations. It is essential 
that a formal regulatory order undergird their actions at the earliest 
possible date. Therefore, the implementation of this rule as an interim 
rule, with a 60-day provision for post-promulgation public comments, is 
based upon the ``good cause'' exceptions set forth at 5 U.S.C. 
553(b)(3)(B) and 553(d)(3).
    This rule is favorable to alien physicians in underserved areas and 
in other respects is not expected to have a significant impact on a 
substantial number of small entities under the criteria of the 
Regulatory Flexibility Act. This rule imposes no reporting or 
recordkeeping action on the public requiring the approval of the Office 
of Management and Budget under the Paperwork Reduction Act 
requirements. This rule is exempted from E.O. 12866 but has been 
reviewed to ensure consistency therewith.

List of Subjects

22 CFR Part 40

    Aliens, Inadmissibility, Nonimmigrants, Passports, Visas.

22 CFR Part 41

    Aliens, Nonimmigrants, Passports, Visas.
    In view of the foregoing, 22 CFR Part 40 is amended as follows:

PART 40--[AMENDED]

    1. The authority citation for Part 40 continues to read:

    Authority: 8 U.S.C. 1104.

    2. Section 40.68 is added to read as follows:

[[Page 671]]

Sec. 40.68   Aliens subject to INA 222(g).

    An alien who, under the provisions of INA 222(g), has voided a 
nonimmigrant visa by remaining in the United States beyond the period 
of authorized stay is ineligible for a new nonimmigrant visa unless the 
alien complies with the requirements in 22 CFR 41.101 (b) or (c) 
regarding the place of application.

PART 41--[AMENDED]

    1. The authority citation for Part 41 continues to read:

    Authority: 8 U.S.C. 1104.

    2. 22 CFR 41.101 is amended by removing the period at the end of 
paragraph (a)(1)(ii) and adding a semicolon and ``or'', adding 
paragraph (a)(1)(iii), amending paragraph (a)(2) by removing ``to the 
Visa Office'' and adding ``for Visa Services'' in its place, and 
redesignating paragraph (b) as paragraph (e) and adding new paragraphs 
(b) through (d) to read as follows:


Sec. 41.101   Place of application.

    (a) * * *
    (1) * * *
    (iii) The alien is subject to INA 222(g) and must apply as set 
forth in paragraph (b) or (c) of this section.
    (b) Place of application for persons subject to INA 222(g). 
Notwithstanding the requirements of paragraph (a) of this section, an 
alien whose prior nonimmigrant visa has been voided pursuant to INA 
222(g), who is applying for a new nonimmigrant visa, shall make 
application at a consular office which has jurisdiction in or for the 
country of the alien's nationality unless extraordinary circumstances 
have been determined to exist with respect to that alien as set forth 
in paragraph (c) of this section.
    (c) Exceptions based on extraordinary circumstances. (1) An alien 
physician serving in underserved areas of the United States under the 
provisions of INA 214(k) for whom an application for a waiver of the 2-
year foreign residence requirement and/or a petition to accord H-1B 
status was filed prior to the end of the alien's authorized period of 
stay and was subsequently approved, but whose authorized stay expired 
during the adjudication of such application(s), shall make application 
in accordance with paragraph (a) of this section.
    (2) Any other individual or group whose circumstances are 
determined to be extraordinary, in accordance with paragraph (d)(1) of 
this section, by the Deputy Assistant Secretary for Visa Services upon 
the favorable recommendation of an immigration or consular officer, 
shall make application in accordance with paragraph (a) of this 
section.
    (3) An alien who has, or immediately prior to the alien's last 
entry into the United States had, a residence in a country other than 
the country of the alien's nationality shall apply at a consular office 
with jurisdiction in or for the country of residence.
    (4) An alien who is a national and resident of a country in which 
there is no United States consular office shall apply at a consular 
office designated by the Deputy Assistant Secretary for Visa Services 
to accept immigrant visa applications from persons of that nationality.
    (5) An alien who possesses more than one nationality and who has, 
or immediately prior to the alien's last entry into the United States 
had, a residence in one of the countries of the alien's nationality 
shall apply at a consular office in the country of such residence.
    (d) Definitions relevant to INA 222(g). (1) Extraordinary 
circumstances--Extraordinary circumstances may be found where 
compelling humanitarian or national interests exist or where necessary 
for the effective administration of the immigration laws. Extraordinary 
circumstances shall not be found upon the basis of convenience or 
financial burden to the alien, the alien's relative, or the alien's 
employer.
    (2) Nationality--For purposes of paragraph (b) of this section, a 
stateless person shall be considered to be a national of the country 
which issued the alien's travel document.
* * * * *


Sec. 41.121   [Amended]

    3. 22 CFR 41.121(a) is amended by removing ``or'' before ``INA 
22(g)'' at the end of the first sentence, and adding a comma and ``or 
INA 222(g)'' after ``INA 221(g)''.

    Dated: December 5, 1997.
Mary A. Ryan,
Assistant Secretary for Consular Affairs.
[FR Doc. 98-87 Filed 1-6-98; 8:45 am]
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