[Federal Register Volume 68, Number 129 (Monday, July 7, 2003)]
[Rules and Regulations]
[Pages 40127-40129]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-17044]


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DEPARTMENT OF STATE

22 CFR Part 41

[Public Notice 4393]


VISAS: Documentation of Nonimmigrants Under the Immigration and 
Nationality Act, as Amended; Personal Appearance

AGENCY: Department of State.

ACTION: Interim rule with request for comments.

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SUMMARY: This interim rule brings Department regulations into line 
with, and allows further expansion of, post-9/11 policy guidance issued 
by the Department that has increasingly restricted the number of 
instances in which the interview of a nonimmigrant visa applicant may 
be waived. The regulation significantly reduces the number and kind of 
situations in which the usual requirement that a nonimmigrant visa 
applicant appear before an officer for a personal interview may be 
waived by the consular officer, while making express the Department's 
authority to set interview policies centrally. The Department is taking 
this regulatory action in order to further develop the new legal 
framework necessary to support a series of steps undertaken in order to 
more adequately ensure the security and integrity of nonimmigrant visa 
application and issuance procedures. Upon publication of this rule, 
certain visa applicants who previously may have had their personal 
appearance before a consular officer for the purpose of applying for a 
nonimmigrant visa waived will be required by regulation to make such an 
appearance to be interviewed. In practice, however, many of these 
applicants are already being interviewed, based on internal Department 
guidance or decisions made at consular posts.

DATES: Effective date: This rule is effective August 1, 2003.
    Comment date: Written comments may be submitted within 60 days of 
the date of publication of this document in the Federal Register.

ADDRESSES: Written comments may be submitted, in duplicate, to the 
Legislation and Regulations Division, Visa Services, Department of 
State, Washington, DC 20520-0106, or by e-mail to [email protected].

FOR FURTHER INFORMATION CONTACT: Elizabeth J. Harper, Legislation and 
Regulations Division, Visa Services, Department of State, Washington, 
DC 20520-0106, (202) 663-1221.

SUPPLEMENTARY INFORMATION:

What Is the Origin of the Waiver of Appearance Rule?

    The Immigration and Nationality Act, section 222(e), requires that 
all applicants for immigrant visas appear personally before a consular 
officer, but leaves the question of personal appearance of nonimmigrant 
visa applicants to be defined by regulation. The Department's 
regulations state a usual requirement of personal appearance by 
nonimmigrant visa applicants, but for at least forty years have defined 
a range of applicants whose appearance may be waived by the consular 
officer--i.e., granted a ``personal appearance waiver'' or ``PAW.''

What Change Is Being Made?

    Because of heightened security concerns in the period immediately 
following September 11, the Department undertook a thorough review of 
its visa application and issuance procedures. As a result of that 
review, consular officers have begun to interview a much larger 
percentage of nonimmigrant visa applicants than they did prior to 
September 11, both in response to Department internal guidance and as a 
result of decisions made at consular posts. Because of the continuing 
need to ensure that the visa process is focused on security concerns, 
the Department believes it is desirable to codify the changed practice 
into regulation and to provide a regulatory basis for further adjusting 
the interview exemptions through centralized direction, as appropriate. 
This rule is intended to reflect the current scope and use of consular 
and Departmental personal appearance waiver authority. This amended 
version of the regulation generally permits waivers of the interview by 
consular officers in significantly fewer kinds of cases than the 
regulation being amended. The one exception is that the regulation 
raises the age of children who may qualify for consular officer 
interview waivers from age 14 to age 16. Consular officers will no 
longer have broad discretion under regulation to grant PAWs with 
respect to applicants for B, C-1, H-1, I, J and crew visas. In certain 
circumstances, however, officers will have discretion to grant PAWs for 
applicants for any category of nonimmigrant visa who have previously 
been issued a visa in the same category for which they are applying. 
The amended regulation continues consular authority for granting PAWs 
to diplomats and officials of international organizations. Further, it 
will allow the Deputy Assistant Secretary for Visa Services to waive 
the personal appearance requirement in specific situations, i.e., when 
the Department determines, centrally, that the waiver would not be 
inconsistent with homeland security interests. Thus, the regulation 
effectively shifts to the Department authority to make a number of 
interview waiver decisions previously made at consular posts.

Which Applicants May Still Benefit From a Consul's Authority To Waive 
Personal Appearance?

    Under the revised regulation, a consular officer may waive the 
personal appearance of a visa applicant in six specific categories. 
These are: (1) Children age 16 and under; (2) persons age 60 years or 
older; (3) most of the applicants within a class of nonimmigrants 
classifiable under the visa symbols A, C-2, C-3, G, or NATO (with the 
exception of attendants, servants and personal employees); (4) aliens 
applying for diplomatic or official visas, as defined in 22 CFR 41.26 
and

[[Page 40128]]

41.27, respectively; (5) applicants who within twelve months of the 
expiration of their previous visa are seeking re-issuance of a 
nonimmigrant visa in the same classification at the consular post of 
the alien's usual residence, and for whom the consular officer has no 
indication of any noncompliance with U.S. immigration laws and 
regulations, and (6) aliens for whom a waiver of personal appearance is 
warranted in the national interest or because of unusual circumstances, 
as determined by the consular officer.
    Experience shows that applicants in the first and second categories 
pose very little if any threat to our security. Persons in the third 
and fourth categories, diplomats and officers or employees of 
international organizations and their immediate families are ordinarily 
very well known to embassy staff members, or there is extensive 
background information available concerning them. In addition, 
international law, comity and reciprocity with regard to official 
personnel may appropriately be taken into account. In the fifth 
category, the previous personal appearance by and interview of the 
applicant would make it unlikely that further appearance and interview 
would reveal any basis for refusal. Applicants in the sixth category, 
except for those cases based on medical issues, will generally be 
important contacts of embassy officers and therefore well known to the 
embassy. It is important to understand, however, that, although the 
consular officer has discretion to waive personal appearance for an 
individual falling in one of the six categories, waiver is never 
required.

What Other Waiver Authority May Be Exercised?

    In addition to the waiver authority granted to consular officers in 
the six specific categories listed above, as mentioned, the Deputy 
Assistant Secretary for Visa Services will have the authority to waive 
the requirement for personal appearance for a class of individuals when 
the Deputy Assistant Secretary is satisfied that the waiver is in the 
national interest or involves unusual circumstances.

Regulatory Analysis and Notices

Administrative Procedure Act

    The Department is publishing this rule as an interim rule, with a 
60-day provision for post-promulgation public comments, based on the 
``good cause'' exceptions set forth at 5 U.S.C. 553(b)(3)(B) and 
553(d)(3). It is dictated by the necessity of additional controls over 
the documentation and entry of aliens at this time, in light of the 
continuing threat of terrorist attacks on the United States and, as 
noted, is bringing the Department's regulation into line with practices 
that are already generally in effect through the discretionary exercise 
of existing waiver authority.

Regulatory Flexibility Act

    Pursuant to section 605 of the Regulatory Flexibility Act, the 
Department has assessed the potential impact of this rule, and the 
Department of State hereby certifies that it is not expected to have a 
significant economic impact on a substantial number of small entities.

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 in any 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 804 of the 
Small Business Regulatory Enforcement Act of 1996. 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 12866

    The Department does not consider this rule a ``significant 
regulatory action'' under Executive Order 12866, section 3(f) 
Regulatory Planning and Review. Nevertheless, the Department has 
submitted the rule to the Office of Management and Budget for its 
review.

Executive Order 13132

    This regulation 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 require consultations or warrant 
the preparation of a federalism summary impact statement.

Paperwork Reduction Act

    This rule does not impose any new reporting or record-keeping 
requirements subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 
35.

List of Subjects in 22 CFR Part 41

    Aliens, Passports and Visas.

0
Accordingly, for the reasons discussed in the preamble, Part 41 is 
amended as follows:

PART 41--[AMENDED]

0
1. The authority citation for part 41 continues to read:

    Authority: 8 U.S.C. 1104; Public Law 105-277, 112 Stat. 2681 et 
seq.

0
2. Revise section 41.102 to read as follows:


Sec.  41.102  Personal appearance of applicant.

    (a) Personal appearance before a consular officer is required 
except as otherwise provided in this section. Except when the 
requirement of personal appearance has been waived pursuant to 
paragraph (b) or (c) of this section, each applicant for a nonimmigrant 
visa must personally appear before and be interviewed by a consular 
officer, who shall determine on the basis of the applicant's 
representations, the visa application and other relevant documentation:
    (1) The proper nonimmigrant classification, if any, of the alien; 
and
    (2) The alien's eligibility to receive a visa.
    (b) Waivers of personal appearance by consular officers. Unless 
otherwise instructed by the Deputy Assistant Secretary of State for 
Visa Services, a consular officer may waive the requirement of personal 
appearance in the case of any alien who the consular officer concludes 
presents no national security concerns requiring an interview and who:
    (1) Is a child 16 years of age or under;
    (2) Is a person 60 years of age or older;
    (3) Is within a class of nonimmigrants classifiable under the visa 
symbols A-1, A-2, C-2, C-3, G-1, G-2, G-3, G-4, NATO-1, NATO-2, NATO-3, 
NATO-4, NATO-5, or NATO-6 and who is seeking a visa in such 
classification;
    (4) Is an applicant for a diplomatic or official visa as described 
in Sec. Sec.  41.26 and 41.27 of this chapter, respectively;
    (5) Is an applicant who within 12 months of the expiration of the 
applicant's previously issued visa is seeking re-issuance of a 
nonimmigrant visa in the same classification at the consular post of 
the applicant's usual

[[Page 40129]]

residence, and for whom the consular officer has no indication of visa 
ineligibility or noncompliance with U.S. immigration laws and 
regulations; or
    (6) Is an alien for whom a waiver of personal appearance is 
warranted in the national interest or because of unusual circumstances, 
as determined by the consular officer.
    (c) Waivers of personal appearance by the Deputy Assistant 
Secretary of State. The Deputy Assistant Secretary for Visa Services 
may waive the personal appearance before a consular officer of an 
individual applicant or a class of applicants if the Deputy Assistant 
Secretary finds that the waiver of personal appearance is warranted in 
the national interest or because of unusual circumstances and that 
national security concerns do not require an interview.
    (d) Unusual circumstances. As used in this section, unusual 
circumstances shall include, but not be limited to, an emergency or 
unusual hardship.

    Dated: June 26, 2003.
Maura Harty,
Assistant Secretary for Consular Affairs, Department of State.
[FR Doc. 03-17044 Filed 7-3-03; 8:45 am]
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