[Federal Register Volume 63, Number 51 (Tuesday, March 17, 1998)]
[Proposed Rules]
[Pages 13026-13027]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-6826]
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DEPARTMENT OF STATE
22 CFR Part 41
[Public Notice 2763]
Bureau of Consular Affairs; Documentation of Nonimmigrants Under
the Immigration and Nationality Act, as Amended--Filing an Application
AGENCY: Bureau of Consular Affairs, DOS.
ACTION: Proposed rule.
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SUMMARY: Consular offices abroad have been experiencing an ever-
increasing volume of nonimmigrant visa (NIV) applications. Some have
had to begin declining to accept new applications from persons denied
as intending immigrants in the recent past. This proposed rule would
put this practice on a regulatory footing by formalizing a non-
acceptance-for-six-months policy with respect to a new application from
an alien whose prior NIV application has been refused under the
provisions of INA 214(b).
DATES: Written comments must be received on or before May 18, 1998.
ADDRESSES: Written comments should be submitted, in duplicate, to the
Chief, Legislation and Regulations Division, Visa Services, Department
of State, Washington, D.C. 20520-0106.
FOR FURTHER INFORMATION CONTACT: H. Edward Odom, Chief, Legislation and
Regulations Division, Visa Services, CA/VO/L/R, Department of State,
Washington, D.C. 20520-0106, (202) 663-1204.
SUPPLEMENTARY INFORMATION: Section 214(b) of the Immigration and
Nationality Act (INA) establishes a presumption that an alien is an
intending immigrant unless he or she can establish entitlement to a
nonimmigrant classification. Moreover, for certain classes of
nonimmigrants, there is also a statutory requirement incorporated in
the definitions of those nonimmigrant classifications (INA 101(a)(15))
that the alien establish that he or she has a residence abroad which
[[Page 13027]]
the alien has no intention of abandoning. This is most commonly shown
by possession of a well-paying job, a home, family or other ties, etc.
which would, in themselves, compel the alien to return voluntarily to
that place after a temporary period in the United States.
Traditionally, the class of nonimmigrant most likely to fail this test
is visitor for business or pleasure (``B'') under INA 101(a)(15)(B). An
applicant may request reconsideration by the refusing consular officer
and all refusals must, by regulation (41.121(c)), be reviewed within
120 days by a senior officer, who looks at the information as
originally before the consular officer. While an applicant may also
file an entirely new application, the sooner such a new application is
filed after the original application, the less likely it is that
conditions relevant to the intending immigrant issue will have so
changed as to warrant issuance of a visa on the new application.
Nonetheless, at a number of consular offices, significant resources
are spent on ``re-applications'' based on nothing more than the
original application, resources that the posts cannot afford no matter
how strong their ``service'' orientation. Many posts continue to
experience increasing workloads without concomitant increasing staffs.
Some posts have therefore instituted local policies, similar to the
proposed rule, to limit expenditure of time and space on the many re-
applications which are non-meritorious, while reserving discretion to
accept re-applications in special circumstances, such as genuine
(documentable) emergencies. The Department believes it preferable to
have this procedure reflected in uniformly applicable regulations as
other procedures generally are.
The rules at 22 CFR 41.103(a) outline the general procedures for
filing an application for a nonimmigrant visa, and are thus the logical
location for this proposed rule. No regulation could prevent an alien
from filling out an application form; it is possible, however, to
prevent its ``filing'', i.e., acceptance for adjudication by a consular
officer.
This rule is proposed under the authority of INA 104 which invests
in the Secretary of State the right to promulgate regulations necessary
to administer immigration laws relating to the duties and functions of
consular officers.
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 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 under E.O. 12998 and determined to
be in compliance therewith.
This rule is exempt from review under E.O. 12866, but has been
reviewed internally to ensure consistency therewith.
List of Subjects in 22 CFR Part 41
Aliens, Nonimmigrants, Passports, Visas.
In view of the foregoing, 22 CFR Part 41 is proposed to be amended
as follows:
PART 41--[AMENDED]
1. The authority citation for Part 41 continues to read:
Authority: 8 U.S.C. 1104.
2. Section 41.103 is amended by adding paragraph (a)(4), to read as
follows:
Sec. 41.103 Filing an application and Form OF-156
* * * * *
(4) A consular officer may refuse to accept for adjudication an
application for a nonimmigrant visa from an applicant whose prior
application at that post was denied under the provisions of INA 214(b)
within the preceding six months, unless the applicant presents
significantly different new evidence or evidence of a genuine
emergency.
* * * * *
Dated: March 10, 1998.
Mary A. Ryan,
Assistant Secretary for Consular Affairs.
[FR Doc. 98-6826 Filed 3-16-98; 8:45 am]
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