[Federal Register Volume 67, Number 35 (Thursday, February 21, 2002)]
[Rules and Regulations]
[Pages 7943-7945]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-4260]


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DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 217

[INS No. 2188-02; AG ORDER No. 2561-2002]
RIN 1115-AB93


Termination of the Designation of Argentina as a Participant 
Under the Visa Waiver Program

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Interim rule with request for comments.

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SUMMARY: The Visa Waiver Program (VWP) permits nationals from 
designated countries to apply for admission to the United States for 
ninety (90) days or less as visitors for business or pleasure without 
first obtaining a nonimmigrant visa. On July 8, 1996, Argentina was 
added as a participating country in the VWP. Due to the current 
economic crisis in Argentina and the increase in the number of 
Argentine nationals attempting to use the program to live and work 
illegally in the United States, the Department of Justice, in 
consultation with the Department of State, has determined that 
Argentina's participation in the VWP is inconsistent with the U.S. 
interest in enforcement of the immigration laws of the United States. 
Accordingly, this rule terminates Argentina's designation as a VWP 
participant. Argentine nationals who intend to travel to the United 
States for legitimate business or pleasure must acquire a nonimmigrant 
visa at a U.S. consulate or embassy prior to their arrival in the 
United States.

DATES: Effective date: This interim rule is effective February 21, 
2002.

[[Page 7944]]

    Comment date: Written comments must be submitted on or before April 
22, 2002.

ADDRESSES: Please submit written comments to the Director, Regulations 
and Forms Services Division, Immigration and Naturalization Service, 
425 I Street, NW, Room 4034, Washington, DC 20536. To ensure proper 
handling, please reference INS No. 2188-02 on your correspondence. 
Comments may be submitted electronically to the Immigration and 
Naturalization Service (Service) at [email protected]. Comments 
submitted electronically should include the INS No. 2188-02 in the 
subject heading. Comments are available for public inspection at the 
above address by calling (202) 514-3048 to arrange for an appointment.

FOR FURTHER INFORMATION CONTACT: Marty Newingham, Assistant Chief 
Inspector, Inspections Division, Immigration and Naturalization 
Service, 425 I Street NW, Room 4064, Washington, DC 20536, telephone 
number: (202) 616-7992.

SUPPLEMENTARY INFORMATION:

What Is the VWP?

    The VWP permits nationals from designated countries to apply for 
admission to the United States for ninety (90) days or less as 
nonimmigrant visitors for business or pleasure without first obtaining 
a nonimmigrant visa from a U.S. consular officer abroad, provided that 
all statutory and regulatory requirements are met. 8 U.S.C. 1187(a). If 
arriving by air or sea, a VWP traveler must arrive on a carrier that 
signed an agreement (signatory carrier) guaranteeing to transport 
inadmissible or deportable VWP travelers out of the United States at no 
expense to the United States. 8 U.S.C. 1187(e).

Why Is Argentina's Designation in the VWP Being Terminated?

    Since December 2001, Argentina has been experiencing a serious 
economic crisis, including defaulting on loans by foreign creditors, 
devaluation of its currency, and increased levels of unemployment and 
poverty. As the economic climate has deteriorated in Argentina, the 
Immigration and Nationalization Service (Service) has experienced a 
pronounced increase in the number of Argentine nationals attempting to 
use the VWP to enter the United States to live and work illegally. 
While the number of Argentine nonimmigrant travelers to the United 
States declined between 1998 (518,770) and 2000 (516,153), the number 
of Argentines denied admission at the border rose from 173 cases in 
1998 to 529 cases in 2000. Preliminary data suggest that the number of 
Argentines refused admission at the border nearly doubled from 2000 to 
2001. Interior apprehensions also increased from 97 cases in 1998 to 
230 cases in 2001. Since November 2001, Argentine VWP applicants for 
admission have been telling U.S. immigration officers at ports-of-entry 
(POEs) that they intend to reside in and seek employment in the United 
States because of the poor economic situation in Argentina. Many 
Argentine nationals use the VWP to obtain entry to the United States 
solely for the purpose of proceeding to the Canadian border and 
pursuing an asylum claim in Canada. According to Citizenship and 
Immigration Canada (CIC), over the last two years, more than 2,500 
Argentines have filed refugee claims in Canada after transiting the 
United States under the VWP.
    While the Argentine passport itself is a relatively secure 
document, the process for obtaining the documents to procure a passport 
lacks integrity, adding to the risk of successful organized smuggling 
of aliens into the United States.
    Terminating Argentina's VWP program designation, thereby 
reinstating the regular nonimmigrant visa requirements for Argentine 
nationals, will make it more difficult for unauthorized immigrants to 
enter the United States. As with nationals of all other countries not 
designated for VWP, Argentine nationals seeking to enter the United 
States will have to apply for a nonimmigrant visa at a U.S. consular 
office abroad, and they will be screened again by an immigration 
officer at a U.S. port of entry to determine admissibility.

What Legal Authority Has the Attorney General Invoked To Terminate 
Argentina's VWP Designation?

    Sections 217(c)(5)(B)(i) and (c)(5)(B)(ii)(IV) of the Immigration 
and Nationality Act (8 U.S.C. 1187(c)(5)(B)(i) and (c)(5)(B)(ii)(IV)) 
require the Attorney General, in consultation with the Secretary of 
State, to terminate a country's VWP designation if he determines that a 
severe economic collapse in a program country threatens the law 
enforcement or security interests of the United States, including the 
interest in enforcement of the immigration laws of the United States.

What Does This Rule Do?

    The Attorney General, in consultation with the Department of State, 
has determined that, due to the existence of the conditions set forth 
in INA section 217(c)(5)(B)(ii)(IV), Argentina's participation in the 
VWP threatens the United States' interest in enforcement of the 
immigration laws. Accordingly, Argentine citizens are no longer 
eligible to participate in the VWP. Effective February 21, 2002, 
Argentina is removed as a participating country in the VWP.

What Is the Legal Status of an Argentine National Who Was Admitted 
to the United States Under the VWP Before February 21, 2002 and Who 
Has Time Remaining on His or Her Period of Admission?

    As long as the alien lawfully gained admission under the VWP before 
the effective date of this termination of designation notice, and 
continues to be in compliance with the terms of his or her admission, 
he or she may remain in the United States for the period of time 
authorized on the date of admission.
    The Department notes, however, that an alien admitted as a visitor 
for business or pleasure under the VWP is not eligible for change or 
extension of nonimmigrant status under the existing regulations.

Good Cause Exception

    This interim rule is effective February 21, 2002, although the 
Service invites post-promulgation comments and will address any such 
comments in a final rule. The Service finds that good cause exists for 
adopting this rule without the prior notice and comment period 
ordinarily required by 5 U.S.C. 553 for the following reasons. Since 
December 2001, Argentina has experienced a severe economic crisis and, 
at the same time, the Service has experienced an increasing number of 
Argentines attempting to use the program to work and live illegally in 
the United States--thus abusing the program. Increasing program abuse 
by Argentine nationals is inconsistent with the United States' interest 
in enforcing its immigration laws. Reestablishing the normal 
nonimmigrant visa requirements for Argentine nationals will have the 
immediate effect of stemming the flow of unauthorized immigration to 
the United States by such nationals. It would be contrary to the law 
and the public interest to allow such a threat to the immigration 
enforcement interests of the United States to continue. Because 
delaying the effective date of this interim rule is impractical and 
contrary to the public interest, there is good cause under 5 U.S.C. 553 
to make this rule effective upon publication in the Federal Register.

[[Page 7945]]

Regulatory Flexibility Act

    The Attorney General, in accordance with the Regulatory Flexibility 
Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving 
it, certifies that this rule will not have a significant economic 
impact on a substantial number of small entities. Although individuals 
doing business with small entities will no longer be allowed to enter 
the United States without having a visa, they will be able to seek 
admission to the United States by obtaining a nonimmigrant visa at a 
United States consulate or embassy prior to arrival in the United 
States. This action is necessary to further the law enforcement and 
national security interests of the United States.

Executive Order 12866

    This rule is considered by the Department of Justice, to be a 
``significant regulatory action'' under Executive Order 12866, section 
3(f), Regulatory Planning and Review. Accordingly, this rule has been 
submitted to the Office of Management and Budget (OMB) for review.

Executive Order 13132

    This rule will not have substantial direct effects on the States, 
on the relationship between the National Government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government. Therefore, in accordance with section 6 of 
Executive Order 13132, it is determined that this rule does not have 
sufficient federalism implications to warrant the preparation of a 
federalism summary impact statement.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 251 of the 
Small Business Regulatory Enforcement Act of 1996. 5 U.S.C. 804. This 
rule will not result in an annual effect on the economy of $100 million 
or more; a major increase in costs or prices; or significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or on the ability of United States-based companies to 
compete with foreign-based companies in domestic and export markets.

Executive Order 12988

    This rule meets the applicable standards set forth in sections 3(a) 
and 3(b)(2) of Executive Order 12988.

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995, Public Law 104-13, 109 
Stat. 163, all departments are required to submit to OMB, for review 
and approval, any reporting requirements inherent in a final rule. This 
rule does not impose any new reporting and recordkeeping requirements 
under the Paperwork Reduction Act.

List of Subjects in 8 CFR Part 217

    Air carriers, Aliens, Maritime carriers, Passports and visas.

    Accordingly, 8 CFR chapter I is amended as follows:

PART 217--VISA WAIVER PROGRAM

    1. The heading for part 217 is revised as set forth above.

    2. The authority citation for part 217 continues to read as 
follows:

    Authority: 8 U.S.C. 1103, 1187; 8 CFR part 2.


Sec. 217.2  [Amended]

    3. Section 217.2(a) is amended under the definition ``Designated 
country'' by removing ``Argentina,'' from the list of countries.

    Dated: February 15, 2002.
Larry D. Thompson,
Acting Attorney General.
[FR Doc. 02-4260 Filed 2-19-02; 2:20 pm]
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