[Federal Register Volume 75, Number 148 (Tuesday, August 3, 2010)]
[Rules and Regulations]
[Pages 45475-45477]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-19046]



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 Rules and Regulations
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  Federal Register / Vol. 75, No. 148 / Tuesday, August 3, 2010 / Rules 
and Regulations  

[[Page 45475]]



DEPARTMENT OF STATE

22 CFR Parts 40 and 42

[Public Notice: 7085]


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

AGENCY: State Department.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This final rule amends the Department of State's regulations 
related to the application for an immigrant visa and alien 
registration, to offer a completely electronic application procedure as 
an alternative to submission of Form DS-230, the Application for 
Immigrant Visa and Alien Registration.

DATES: This rule is effective August 3, 2010.

FOR FURTHER INFORMATION CONTACT: Andrea Lage, Legislative and 
Regulations Division, Visa Services, 2401 E Street, NW., Department of 
State, Washington, DC 20520-0106, (202) 663-1399.

SUPPLEMENTARY INFORMATION:

Why is the Department promulgating this rule?

    The Government Paperwork Elimination Act (GPEA) requires that, when 
possible, Federal agencies use electronic forms, electronic filing, and 
electronic signatures to conduct business with the public. For this 
reason, the Department of State developed and introduced an electronic 
application process for immigrant visa applicants to eventually replace 
the current paper-based application process, which consists of Parts 1 
and 2 of Form DS-230, Application for Immigrant Visa and Alien 
Registration. While the Department will continue to accept the DS-230 
when necessary, it proposes to eventually eliminate the DS-230 entirely 
and replace it with the DS-260, the Electronic Application for 
Immigrant Visa and Alien Registration, an electronic form designed to 
be completed and signed electronically.

What effect does the electronic application process have on the 
immigrant visa applicant?

    The procedure is the same for the immigrant visa applicant except 
that he or she will not be required to print a form to take to the visa 
interview. All information entered into the DS-260 will be available to 
the National Visa Center and to the consular officer at the time of 
application processing and interviewing, thus simplifying the process 
for the applicant. The applicant is required to sign the DS-260 
electronically at the time of submission by clicking a ``Sign and 
Submit Application'' box contained within the application. The 
applicant will also be required to swear under oath at the time of the 
interview that the information provided on the DS-260 is true and 
correct to the best of the individual's knowledge and provide a 
biometric signature in connection with the oath.

How does the applicant sign the form electronically?

    The applicant will be required to click on the box designated 
``Sign and Submit Application'' found within the certification section 
of the application.

How does the consular officer confirm the identity of an applicant who 
has submitted an electronic application (DS-260)?

    Photos, passports, and fingerscans collected as part of the 
application process will identify the applicant.

How does the applicant certify that the information on the DS-260 is 
correct?

    By signing the DS-260 electronically (i.e., clicking on the ``Sign 
and Submit Application'' button), the applicant certifies that the 
information provided is correct. The applicant will also be required to 
swear under oath to statements contained on the DS-260 at the time of 
the interview and to provide a biometric signature in connection with 
the oath.

Is the electronic signature binding on an immigrant visa applicant?

    Yes. The electronic signature indicates that the applicant is 
familiar with and intends to be bound by the statements contained in 
the application and has answered all questions truthfully, under 
penalty of perjury.

Can a third party prepare the DS-260?

    A third party may assist the applicant in preparing the DS-260, 
however the applicant must electronically sign the application himself 
or herself. The applicant must identify in the application any third 
party who has assisted in the preparation of the DS-260.

Regulatory Findings

Administrative Procedure Act

    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

    Because this final rule is exempt from notice and comment 
rulemaking under 5 U.S.C. 553, it is exempt from the regulatory 
flexibility analysis requirements set forth at sections 603 and 604 of 
the Regulatory Flexibility Act (5 U.S.C. 603 and 604). Nonetheless, 
consistent with section 605(b) of the Regulatory Flexibility Act (5 
U.S.C. 605(b)), the Department certifies that this rule will not have a 
substantial economic impact on a substantial number of small entities. 
This regulates individual aliens who seek consideration for immigrant 
visas and does not affect any small entities, as defined in 5 U.S.C. 
601(6).

Unfunded Mandates Act of 1995

    Section 202 of the Unfunded Mandates Reform Act of 1995, Public Law 
104-4, 109 Stat. 48, 2 U.S.C. 1532, generally requires agencies to 
prepare a statement before proposing any rule that may result in an 
annual expenditure of $100 million or more by State, local, or tribal 
governments, or by the private sector. This rule will not result in any 
such expenditure, nor will it significantly or uniquely affect small 
governments.

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

[[Page 45476]]

rulemaking under the Small Business Regulatory Enforcement Fairness Act 
of 1996, Public Law 104-121. The 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 the ability of 
United States-based companies to compete with foreign-based companies 
in domestic or import markets.

Executive Order 12866

    The Department of State has reviewed this rule to ensure its 
consistency with the regulatory philosophy and principals set forth in 
Executive Order 12866 and had determined that the benefits of the 
proposed regulation justify the costs. The Department does not consider 
the rule to be an economically significant action within the scope of 
section 3(f)(1) of the Executive Order since it is not likely to have 
an annual effect on the economy of $100 million or more or to adversely 
affect in a material way the economy, a sector of the economy, 
competition, jobs, the environment, public health or safety, or state, 
local, or tribal governments or communities.

Executive Order 12372 and 13132: Federalism

    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 will the rule have federalism 
implications warranting the application of Executive Orders No. 12372 
and No. 13132.

Executive Order 12988: Civil Justice Reform

    The Department has reviewed this regulation in light of sections 
3(a) and 3(b)(2) of Executive Order 12988 to eliminate ambiguity, 
minimize litigation, establish clear legal standards, and reduce 
burden.

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 Parts 40 and 42

    Aliens, Foreign Officials, Immigration, Nonimmigrants, Passports 
and Visas.


0
Accordingly, for the reasons set forth in the preamble, the Department 
of State amends 22 CFR Part 40 and 41 as follows:

PART 40--[AMENDED]

0
1. The authority citation for Part 40 continues to read as follows:

    Authority:  8 U.S.C. 1104.


0
2. Section 40.1 is amended by revising paragraph (l)(2) to read as 
follows:


Sec.  40.1  Definitions.

* * * * *
    (l) * * *
    (2) For an immigrant visa applicant, personally appearing before a 
consular officer and verifying by oath or affirmation the statements 
contained on Form DS-230 or Form DS-260 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]

0
3. The authority citation for part 42 continues to read as follows:

    Authority:  8 U.S.C. 1104; Pub. L. 107-56, sec. 421.


0
4. Section 42.63 is revised to read as follows:


Sec.  42.63  Definitions.

    (a) Application Forms. (1) Application on Form DS-230 or Form DS-
260 Required.--Every alien applying for an immigrant visa must make 
application, as directed by the consular officer, on Form DS-230, 
Application for Immigrant Visa and Alien Registration, or on Form DS-
260, Electronic Application for Immigrant Visa and Alien Registration. 
This requirement may not be waived. Form DS-230 consists of parts I and 
II which, together, are meant in any reference to this Form.
    (2) Application of alien under 14 or physically incapable. The 
application on Form DS-230 or on Form DS-260 for an alien under 14 
years of age or one physically incapable of completing an application 
may be executed by the alien's parent or guardian, or, if the alien has 
no parent or guardian, by any person having legal custody of, or a 
legitimate interest in, the alien.
    (b) Preparation of forms. The consular officer shall ensure that 
Form DS-230 or Form DS-260 and all other forms an alien is required to 
submit are fully and properly completed in accordance with the 
applicable regulations and instructions.
    (c) Additional information as part of application. The officer may 
require the submission of additional information or question the alien 
on any relevant matter whenever the officer believes that the 
information provided in Form DS-230 or Form DS-260 is inadequate to 
determine the alien's eligibility to receive an immigrant visa. 
Additional statements made by the alien become a part of the visa 
application. All documents required under the authority of Sec.  42.62 
are considered papers submitted with the alien's application within the 
meaning of INA 221(g)(1).

0
5. Section 42.67 is revised to read as follows:


Sec.  42.67  Execution of application, registration, and 
fingerprinting.

    (a) Execution of visa application: (1) Application fee.--A fee is 
prescribed for each application for an immigrant visa. It shall be 
collected prior to the execution of the application and a receipt shall 
be issued.
    (2) Oath and signature on Form DS-230. The applicant shall be 
required to read the Form DS-230, Application for Immigrant Visa and 
Alien Registration, when it is completed, or it shall be read to the 
applicant in the applicant's language, or the applicant shall otherwise 
be informed of its full contents. Applicants shall be asked whether 
they are willing to subscribe thereto. If the applicant is not willing 
to subscribe to the application unless changes are made in the 
information stated therein, the required changes shall be made. The 
application shall then be sworn to or affirmed and signed by or on 
behalf of the applicant before a consular officer, or a designated 
officer of the American Institute of Taiwan, who shall then sign the 
application over the officer's title.
    (3) Oath and signature on Form DS-260. The applicant shall be 
required to read the Form DS-260, Electronic Application for Immigrant 
Visa and Alien Registration, when it has been completed, or it shall be 
read to the applicant in the applicant's language, or the applicant 
shall otherwise be informed of its full contents, before the applicant 
electronically signs and submits the application to the Department. At 
the time of the applicant's interview the applicant shall be asked 
whether they are willing to subscribe thereto to the information 
provided on Form DS-260. If the alien is not willing to subscribe to 
the application unless changes are made in the information stated 
therein, the required changes shall be made. The application shall then 
be sworn to or affirmed and signed, biometrically, by or on behalf of 
the applicant before a consular officer, or a designated officer

[[Page 45477]]

of the American Institute of Taiwan, who shall then electronically sign 
the application.
    (b) Registration. The alien shall be considered to be registered 
for the purposes of INA 221(b) and 203(g) upon the filing of Form DS-
230 or Form DS-260, when duly executed, or the transmission by the 
Department to the alien of a notification of the availability of an 
immigrant visa, whichever occurs first.
    (c) Fingerprinting. Every applicant for an immigrant visa must 
furnish fingerprints prior to the execution of Form DS-230 or Form DS-
260.

0
6. Section 42.81 is amended by revising paragraph (b) to read as 
follows:


Sec.  42.81  Procedure in refusing individual visas.

* * * * *
    (b) Refusal procedure. A consular officer may not refuse an 
immigrant visa until either Form DS-230, Application for Immigrant Visa 
and Alien Registration, or Form DS-260, Electronic Application for 
Immigrant Visa and Alien Registration, has been executed by the 
applicant. When an immigrant visa is refused, an appropriate record 
shall be made in duplicate on a form prescribed by the Department. The 
form shall be signed and dated by the consular officer. The consular 
officer shall inform the applicant of the provision of law or 
implementing regulation on which the refusal is based and of any 
statutory provision of law or implementing regulation under which 
administrative relief is available. Each document related to the 
refusal shall then be attached to Form DS-230 for retention in the 
refusal files. Alternatively, each document related to the refusal 
shall be electronically scanned and electronically attached to Form DS-
260 for retention in the electronic refusal files. Any documents not 
related to the refusal shall be returned to the applicant. The original 
copy of a document that was scanned and attached to the DS-260 for the 
refusal file shall be returned to the applicant. If the ground of 
ineligibility may be overcome by the presentation of additional 
evidence and the applicant indicates an intention to submit such 
evidence, all documents may, with the consent of the alien, be retained 
in the consular files for a period not to exceed one year. If the 
refusal as not been overcome within one year, any documents not 
relating to the refusal shall be removed from the file and returned to 
the alien.
* * * * *

    Dated: July 22, 2010.
Janice L. Jacobs,
Assistant Secretary, Bureau of Consular Affairs, Department of State.
[FR Doc. 2010-19046 Filed 8-2-10; 8:45 am]
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