[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]
BILLING CODE 4710-06-P