[Federal Register Volume 64, Number 208 (Thursday, October 28, 1999)]
[Proposed Rules]
[Pages 58004-58006]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-24439]
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DEPARTMENT OF STATE
22 CFR Parts 40 and 42
[Public Notice 3122]
Documentation of Immigrants and Nonimmigrants Under the
Immigration and Nationality Act, as Amended--Change in Procedures for
Payment of Immigrant Visa Fees
AGENCY: Department of State.
ACTION: Proposed rule, with request for comments.
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SUMMARY: This rule changes the regulation relating to immigrant visa
fees to require the applicant to pay the application processing fee
prior to the time of application. Related changes are made to ensure
that this fee change is not misunderstood as changing the long-held
Department of State principle that an alien has ``applied for a visa''
only when, in the case of nonimmigrants, the application (with
processing fee or evidence of the prior payment of the processing fee)
has been accepted for adjudication or, in the case of immigrants, the
applicant has presented all of the required forms and the processing
fee (or evidence of the prior payment of the processing fee) and has
attested to the application under oath or affirmation before the
consular officer.
DATES: Comments must be received on or before December 27, 1999.
ADDRESSES: For written comments, please contact H. Edward Odom, 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: The basic purpose of this regulation is to
modify the point in time at which an immigrant visa applicant must pay
the application processing fee. The regulation defining the time at
which applications have been ``made'' is being added to prevent any
confusion from arising as a result of the revised terminology in the
fee regulation.
Why is it necessary to alter the time when the applicant must pay
the immigrant visa processing fee? An application fee is not a penalty
for applying for a visa; it is intended to cover the costs of the
processing required in connection with such an application. The current
regulation calls for payment of the application fee prior to the formal
application interview, normally when the applicant is at the embassy or
consulate on the day of the visa interview. However, services to the
applicant, and costs incurred by the government, begin long before that
time. Records must be established by the Department of State as soon as
an approved petition is received from the Immigration and
Naturalization Service and a number of processing steps then ensue. As
the purpose of a processing fee is to cover these costs, it is
appropriate that the fee be collected at
[[Page 58005]]
an earlier point in the procedures. However, due to heavy immigrant
visa demand, many immigrant visa registrants may wait years after
registration before reaching the point of receiving a request from the
Department to obtain the documents needed to support their visa
application. In recognition of this, the Department believes it would
be unfair to collect the processing fee at the time of registration. On
the other hand, once an applicant has been informed that a visa number
is expected to become available and instructed to obtain such
supporting documents, it is quite reasonable to collect the processing
fee at that point. Doing so may also permit the Department to develop
more efficient fee collection procedures. Provision is made for refund
of the fee if, for reasons attributable only to the U.S. Government,
the applicant is precluded from proceeding to the remaining steps in
making the application after payment of the fee.
``Making'' an application. The point at which the application is
made is here made explicit in the regulation.
Why is it necessary to clarify the definition of ``making an
application'' in immigrant visa cases? Because immigrant visa cases are
quite complex and involve many steps along the way, some people speak
of ``having applied for a visa'' when the only thing that has happened
to that point is that a relative or prospective employer has filed a
petition to accord the alien a particular status under the immigration
laws. Sometimes such persons believe that when they have been told to
obtain supporting documents, or to complete a biographic form, they
have now ``applied.'' This regulation makes it clear that a person has
``applied'' for an immigrant visa when he or she has presented all
required forms, documents and processing fees (or evidence of the prior
payment of the processing fees) and has been interviewed by a consular
officer and has attested to the veracity and validity of the documents
submitted. Except as otherwise provided by regulation (Secs. 42.62(a)
and 42.63(a)(2)), the law (8 U.S.C. 1202(e)) requires the appearance
and the taking of an oath before a consular officer. Therefore, it has
always been the expressed view of the Department, implicit throughout
its regulations, that an alien cannot be considered to have ``applied''
for an immigrant visa until this requirement is fulfilled. This
distinction may become important in instances in which aliens must
apply for a visa by a particular date. To the extent that some people
might mistake payment of the application processing fee for the making
of an application, it is useful to reiterate this point at this time.
Why should the definition of ``making an application for a visa''
be clarified in the case of nonimmigrant visas? Normally, a consular
officer takes action on a nonimmigrant visa application when the
officer receives required forms, documents and fees or evidence of the
prior payment of the fees. Thus, the nonimmigrant visa application is
not as susceptible to be subject to misunderstanding as in the case of
immigrant visas. This rule does, however, clarify the fact that signing
the form and giving it to a travel agent for presentation, or mailing
it to a consulate, or leaving it in the consular mailbox, is not, in
itself, sufficient. It must also be received by a consular officer and
be accepted for adjudication.
Regulatory Analysis and Notices
Proposed Rule
This is a proposed rule, with a 60-day provision for public
comments.
The Regulatory Flexibility Act
Pursuant to Sec. 605 of the Regulatory Flexibility Act, the
Department has assessed the potential impact of this rule, and the
Assistant Secretary for Consular Affairs hereby certifies that it is
not expected to have a significant economic impact on a substantial
number of small entities.
E.O. 12988 and E.O. 12866
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 by the
Department to ensure consistency therewith. The rule does not directly
affect states or local governments or Federal relationships and does
not create unfunded mandates.
5 U.S.C. Chapter 8
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.
Paperwork Reduction Act
This rule does not create any new paperwork requirements.
List of Subjects in 22 CFR Parts 40 and 42
Aliens, Immigrants, Passports and visas.
In view of the foregoing, 22 CFR part 40 and 22 CFR part 42 are
amended as follows:
PART 40--[AMENDED]
1. The authority citation for part 40 is revised to read as folows:
Authority: 8 U.S.C. 1104.
2. Section 40.1 is amended by redesignating paragraphs (l), (m),
(n), (o), (p), (q), (r), and (s) as paragraphs (m), (n), (o), (p), (q),
(r), (s), and (t), respectively, and adding a new paragraph (l) to read
as follows:
Sec. 40.1 Definitions
* * * * *
(l) Make or file an application for a visa means: (1) For a
nonimmigrant visa applicant, submitting for formal adjudication by a
consular officer of a completed Form OF-156, with any required
supporting documents and the requisite processing fee or evidence of
the prior payment of the processing fee when such documents are
received and accepted for adjudication by the consular officer;
(2) for an immigrant visa applicant, personally appearing before a
consular officer and verifying by oath or affirmation the statements
contained on the Form OF-230 and in all supporting documents, having
previously submitted all forms and documents required in advance of the
appearance and paid the visa application processing fee.
* * * * *
PART 42--[AMENDED]
3. The authority citation for part 42 continues to read:
Authority: 8 U.S.C. 1104.
4. Section 42.71 is amended by revising paragraph (b) to read as
follows:
Sec. 42.71 Authority to issue visas; visa fees.
* * * * *
(b) Immigrant visa fees. The Secretary of State prescribes separate
fees for the processing of immigrant visa applications and for the
issuance of immigrant visas thereafter to persons whose applications
are approved. An individual registered for immigrant visa processing
must pay the processing fee upon being notified that a visa is expected
to become available in the near future and being requested to obtain
the supporting documentation needed to apply formally for a visa, in
accordance with instructions received with such notification. The fee
must be made before the applicant will receive an appointment to appear
and make application before a consular officer. The applicant must pay
the issuance fee after the consular officer has completed the visa
interview and approved
[[Page 58006]]
issuance of the visa, but prior to its issuance. A fee collected for
the processing of an immigrant visa application is refundable only if
the principal officer of a post or the officer in charge of a consular
section determines that the notification of prospective visa
availability was sufficiently erroneous to preclude the applicant from
benefiting from the processing. A fee collected for the issuance of an
immigrant visa is refundable only if either of such officers determines
that the visa was issued in error or could not be used as a result of
U.S. Government actions over which the alien had no control and for
which the alien was not responsible in whole or in part.
Dated: September 10, 1999.
Maura A. Harty,
Acting Assistant Secretary of State for Consular Affairs.
[FR Doc. 99-24439 Filed 10-27-99; 8:45 am]
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