[Federal Register Volume 71, Number 126 (Friday, June 30, 2006)]
[Rules and Regulations]
[Pages 37494-37495]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-10270]


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DEPARTMENT OF STATE

22 CFR Part 41

[Public Notice 5459]


Visas: Documentation of Nonimmigrants Under the Immigration and 
Nationality Act, as Amended

AGENCY: State Department.

ACTION: Final rule.

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SUMMARY: This rule expands guidance to consular offices for the review 
of nonimmigrant visa issuances and refusals contained at 22 CFR 
41.113(i) (new) and 22 CFR 41.121(c), respectively, to specify who 
should conduct the reviews, the types of cases to be reviewed, and the 
goals of the reviews.

DATES: Effective Date: This rule is effective on June 30, 2006.

FOR FURTHER INFORMATION CONTACT: Charles E. Robertson, Legislation and 
Regulations Division, Visa Services, Department of State, Washington, 
DC 20520-0106. Phone: 202-663-3969. E-mail: [email protected].

SUPPLEMENTARY INFORMATION:

Why Is the Department Promulgating These Rules?

    Nonimmigrant visa refusals and issuances are generally committed by 
law to the adjudicating consular officer. The Department nevertheless 
provides for them to be reviewed by consular experts in a supervisory 
capacity. Such reviews are a significant management and instructional 
tool useful in maintaining the highest professional standards of 
adjudication and ensuring uniform and correct application of the law 
and regulations. The purpose of this rule revision is to expand the 
scope of reviews of nonimmigrant visa applications to ensure that 
Department supervisors are reviewing both issuances and refusals to the 
greatest extent practicable, while balancing workload considerations at 
consular posts.

Why Has the Department Imposed a Review of Applications of Nonimmigrant 
Issuances?

    Current regulations require that the section chief or designee 
review all visa refusals. The Foreign Affairs Manual (FAM) calls for a 
spot check of NIV issuances. In order to enhance U.S. border security, 
we are placing greater emphasis on reviewing issuances to ensure that 
visas are issued in compliance with law and procedures. This rule 
revision will provide a regulatory framework for a regular and targeted 
review of both visa issuances and refusals.

Why Has the Department Reduced the Degree of Review of Refusals?

    Due to the need to formalize our review of visa issuances beyond 
spot checks in order to promote border security, it will no longer be 
possible to review all visa refusals. We will continue to review 
refusals to ensure appropriate adjudication standards are maintained, 
while striking the appropriate balance between resources and essential 
functions.

Who Will Review the Applications?

    The reviewing officer will be the adjudicating consular officer's 
direct supervisor, or a designated alternate. If the reviewing officer 
disagrees with the consular officer's decision, and he or she has a 
consular commission and title, the reviewing officer can assume 
responsibility for the case and readjudicate it. If the reviewing 
officer does not have a consular commission and title, he or she must 
consult with the adjudicating officer, or with the Visa Office, to 
resolve any disagreement. The Department's regulation at 22 CFR 
41.121(c) specifies that a refusal must be reviewed without delay; that 
is, on the day of the refusal or as soon as is administratively 
possible. This rule will be applied to review of visa issuances as 
well.

Regulatory Findings

Administrative Procedure Act

    The Department's implementation of this regulation involves a 
foreign affairs function of the United States and, therefore, in 
accordance with 5 U.S.C. 553(a)(1), is not subject to the rule making 
procedures set forth at 5 U.S.C. 553.

Regulatory Flexibility Act/Executive Order 13272: Small Business

    This rule is not subject to the notice-and-comment rulemaking 
provisions of the Administrative Procedure Act or any other act, and, 
accordingly it does not require analysis under the Regulatory 
Flexibility Act (5 U.S.C. 601, et seq.) and Executive Order 13272, 
section 3(b).

The Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by 5 U.S.C. 804, for 
purposes of congressional review of agency rulemaking under the Small 
Business Regulatory Enforcement Fairness Act of 1996, Public Law No. 
104-121. 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 
adverse effects on competition, employment, investment, productivity, 
innovation, or the ability of United States-based companies to compete 
with foreign-based companies in domestic and import markets.

The Unfunded Mandates Reform Act of 1995

    This rule is not subject to the notice-and-comment rulemaking 
provisions of the Administrative Procedure Act or any other act, and, 
accordingly it does not require analysis under the Unfunded Mandates 
Reform Act of 1995 (Pub. L. No. 104-4). Moreover, this rule is not 
expected to result in an annual expenditure of $100 million or more by 
State, local, or tribal governments, or by the private sector. Nor will 
it significantly or uniquely affect small governments.

Executive Orders 12372 and 13132: Federalism

    The Department finds that this regulation will not have substantial 
direct effects on the States, on the relationship between the national 
government and the States, or the distribution of power and 
responsibilities among the various levels of government. Nor does the 
rule have federalism implications warranting the application of 
Executive Orders No. 12372 and No. 13132.

Executive Order 12866: Regulatory Review

    The Department does not consider this rule to be a ``significant 
regulatory action'' under Executive Order 12866, section 3(f), 
Regulatory Planning and Review. In addition, the Department is exempt 
from Executive Order 12866 except to the extent that it is promulgating 
regulations in conjunction with a domestic agency that are significant 
regulatory actions. The Department has nevertheless reviewed the 
regulation to ensure its consistency with the regulatory philosophy and 
principles set forth in this Executive Order.

[[Page 37495]]

Executive Order 12988: Civil Justice Reform

    The Department has reviewed the regulations in light of sections 
3(a) and 3(b)(2) of Executive Order No. 12988 to eliminate ambiguity, 
minimize litigation, establish clear legal standards, and reduce 
burden.

The Paperwork Reduction Act of 1995

    This rule does not impose information collection requirements under 
the provisions of the Paperwork Reduction Act, 44 U.S.C., Chapter 35.

List of Subjects in 22 CFR Part 41

    Aliens, Foreign officials, Immigration, Nonimmigrants, Passports 
and visas, Students.

0
For the reasons stated in the preamble, the Department of State amends 
22 CFR part 41 as follows:

PART 41--[AMENDED]

0
1. The authority citation for part 41 shall continue to read as 
follows:

    Authority: 8 U.S.C. 1104; Public Law No. 105-277, 112 Stat. 
2681-795 through 2681-801. Additional authority is derived from 
Section 104 of the Illegal Immigration Reform and Immigrant 
Responsibility Act of 1996 (IIRIRA) Public Law 104-208, 110 Stat. 
3546.


0
2. In Sec.  41.113, add paragraph (i) to read as follows:


Sec.  41.113  Procedures in issuing visas.

* * * * *
    (i) Nonimmigrant visa refusals must be reviewed, in accordance with 
guidance by the Secretary of State, by consular supervisors, or a 
designated alternate, to ensure compliance with applicable laws and 
procedures. Visa issuances must be reviewed without delay; that is, on 
the day of issuance or as soon as is administratively possible. If the 
reviewing officer disagrees with the decision and he or she has a 
consular commission and title, the reviewing officer may assume 
responsibility and readjudicate the case. If the reviewing officer does 
not have a consular commission and title, he or she must consult with 
the adjudicating officer, or with the Visa Office, to resolve any 
disagreement.


0
3. In Sec.  41.121, revise paragraph (c) to read as follows:


Sec.  41.121  Refusal of individual visas.

* * * * *
    (c) Nonimmigrant visa issuances must be reviewed, in accordance 
with guidance by the Secretary of State, by consular supervisors, or a 
designated alternate, to ensure compliance with laws and procedures. If 
the ground(s) of ineligibility upon which the visa was refused cannot 
be overcome by the presentation of additional evidence, the refusal 
must be reviewed without delay; that is, on the day of the refusal or 
as soon as it is administratively possible. If the ground(s) of 
ineligibility may be overcome by the presentation of additional 
evidence, and the applicant has indicated the intention to submit such 
evidence, a review of the refusal may be deferred for not more than 120 
days. If the reviewing officer disagrees with the decision and he or 
she has a consular commission and title, the reviewing officer can 
assume responsibility and readjudicate the case. If the reviewing 
officer does not have a consular commission and title, he or she must 
consult with the adjudicating officer, or with the Visa Office, to 
resolve any disagreement.
* * * * *

    Dated: June 16, 2006.
Maura Harty,
Assistant Secretary for Consular Affairs, Department of State.
[FR Doc. E6-10270 Filed 6-29-06; 8:45 am]
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