[Federal Register Volume 81, Number 23 (Thursday, February 4, 2016)]
[Rules and Regulations]
[Pages 5906-5908]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-02191]


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DEPARTMENT OF STATE

22 CFR Part 41

[Public Notice: 9428]
RIN 1400-AD17


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

AGENCY: Department of State.

ACTION: Interim final rule.

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SUMMARY: As a result of this rule, a passport and a visa will be 
required of a British, French, or Netherlands national, or of a 
national of Antigua, Barbados, Grenada, Jamaica, or Trinidad and 
Tobago, who has residence in British, French, or Netherlands territory 
located in the adjacent islands of the Caribbean area, or has residence 
in Antigua, Barbados, Grenada, Jamaica, or Trinidad and Tobago, if the 
alien is proceeding to the United States as an agricultural worker. In 
light of past experience, and to promote consistency of treatment 
across H-2A agricultural workers, prudent border management requires 
these temporary workers to obtain a visa along with most other H-2A 
agricultural workers.
    The previous rule allowing temporary workers from these countries 
to enter the United States without a visa presented a vulnerability. 
Temporary workers from these countries now require H-2A visas to enter 
the United States.

DATES: This rule is effective February 19, 2016. Comment period: The 
Department will accept comments until April 4, 2016.

ADDRESSES: 
     Interested parties may submit comments at any time by any 
of the following methods:
     Mail: U.S. Department of State, Visa Services, Legislation 
and Regulations Division, 600 19th Street NW., Room 12-526B, 
Washington, DC 20006 ATTN: Paul-Anthony L. Magadia.
     If you have access to the Internet you may submit comments 
by going to http://www.regulations.gov/#!home and searching for Public 
Notice number XXXX.

FOR FURTHER INFORMATION CONTACT: Paul-Anthony L. Magadia, U.S. 
Department of State, Visa Services, Legislation and Regulations 
Division, Washington, DC 20006, (202) 485-7641, Email: 
[email protected].

SUPPLEMENTARY INFORMATION: 

Why is the Department promulgating this rule?

    The Department of State (the Department) is amending the previous 
rule to alleviate fraud and security concerns that have developed 
subsequent to that rule's publication. The previous rule, 22 CFR 
41.2(e)(1), allowed nationals of certain Caribbean countries, as well 
as nationals of certain other countries who have residence in such 
countries' territories in the Caribbean, to enter the United States as 
temporary agricultural workers without visas. The amended rule requires 
that temporary workers from these countries obtain H-2A visas to enter 
the United States.

What is the current rule?

    Currently, British, French, and Netherlands nationals and nationals 
of Antigua, Barbados, Grenada, Jamaica, and Trinidad and Tobago, who 
have their residence in British, French, or Netherlands territory 
located in the adjacent islands of the Caribbean area or in Antigua, 
Barbados, Grenada, Jamaica, or Trinidad and Tobago, are not required to 
obtain visas before traveling to the United States as H-2A agricultural 
workers.

What will prospective H-2A agricultural workers be required to do?

    The amended rule requires these prospective H-2A agricultural 
workers to obtain a visa prior to traveling to the United States. Any 
spouses or children of these workers also will have to obtain a visa. 
To obtain a visa, these nonimmigrant aliens will have to be in 
possession of a valid passport, submit a visa application to and appear 
for an interview at a U.S. embassy or consulate, and undergo the 
Department's visa screening process.

Will the amended rule ensure that prospective H-2A agricultural workers 
are properly screened prior to their arrival in the United States?

    Requiring these prospective H-2A agricultural workers to obtain 
visas will ensure that they are sufficiently screened prior to arrival 
in the United States. This will lessen the possibility that persons who 
pose security risks to the United States and other potential 
immigration violators may improperly gain admission to the United 
States. At the same time, requiring that these applicants appear before 
consular officers will provide greater opportunities to prescreen for 
potential employment fraud and will promote compliance with Department 
of Homeland Security (DHS) and Department of Labor (DOL) H-2A rules.

[[Page 5907]]

How will the amended rule further the national security interests of 
the United States?

    The Department, in conjunction with DHS, has determined that the 
visa exemption provided a loophole that could potentially be exploited 
by terrorists and other persons seeking to engage in unlawful 
activities in the United States and threatens the security interests of 
the United States. This visa exemption is outdated in the post-9/11 
environment and inconsistent with the visa requirement for other H-2A 
agricultural workers from other countries. The Department and DHS have 
determined that eliminating this visa exemption furthers the national 
security interests of the United States.

How will the amended rule affect the Department's visa issuance 
process?

    The application of the general visa requirement to the class of 
Caribbean agricultural workers described above will ensure that these 
applicants for admission, like other H-2A agricultural workers, are 
properly screened through the Department's visa issuance process prior 
to arrival in the United States. This will lessen the possibility that 
persons who pose security risks to the United States and other 
potential immigration violators may improperly gain admission to the 
United States.
    Moreover, extending the visa requirement to these Caribbean H-2A 
agricultural workers will better ensure that such workers are protected 
from certain employment and recruitment-based abuses. It also will 
ensure that agricultural workers have been informed, and are aware of, 
their rights and responsibilities before departing from their home 
countries to engage in H-2A agricultural work.

What other changes is the Department making in this rule?

    Redesignated paragraph (e)(2)(iv) is being amended to reflect that 
The Royal Virgin Islands Police Department has been renamed the Royal 
Virgin Islands Police Force.

Will DHS be publishing a parallel amendment?

    DHS is publishing a parallel amendment to 8 CFR 212.1(b).

Regulatory Findings

Administrative Procedure Act

    The publication of this rule as an interim final rule, with 
provisions for post-promulgation public comments, is based on the good 
cause exception found in section 553 of the Administrative Procedure 
Act (APA) (5 U.S.C. 553(b)(B)). There is reasonable concern that 
publication of the rule as a proposed rule, which would permit 
continuation of the current visa exemption, could lead to an increase 
in applications for admission in bad faith by persons who would 
otherwise have been denied visas and are seeking to avoid the visa 
requirement and consular screening process during the period between 
the publication of a proposed and a final rule. Accordingly, the 
Department finds that it is impracticable and contrary to the public 
interest to publish this rule with prior notice and comment period. 
Under the good cause exception, this rule is exempt from the notice and 
comment and delayed effective date requirements of the APA.
    In addition, the Department is of the opinion that eliminating the 
visa exemption and requiring a visa for Caribbean H-2A agricultural 
workers, and the spouses or children accompanying or following these 
workers, is a foreign affairs function of the U.S. government. As this 
rule implements this function, the Department is of the opinion that, 
pursuant to 5 U.S.C. 553(a)(1), this rule is exempt from the 
requirements of 5 U.S.C. 553, including the notice and comment and 30-
day delayed effective date requirements. The Department is nevertheless 
providing the opportunity for the public to provide comments for 60 
days.

Regulatory Flexibility Act/Executive Order 13272: Small Business

    Because this interim 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 
significant economic impact on a substantial number of small entities. 
This rulemaking regulates individual aliens who seek consideration for 
nonimmigrant visas and does not affect any small entities, as defined 
in 5 U.S.C. 601(6).

The Unfunded Mandates Reform 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.

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 104-
121.

Executive Order 12866: Regulatory Review

    The costs of this rulemaking are discussed in the companion DHS 
rule, RIN 1651-AB09, included elsewhere in this edition of the Federal 
Register. That discussion is incorporated by reference herein. The 
Department has reviewed the costs and benefits of this rule to ensure 
its consistency with the regulatory philosophy and principles set forth 
in Executive Order 12866 and has determined that the benefits of this 
interim final rule justify its costs.

Executive Order 13563

    The Department has considered this rule in light of Executive Order 
13563, dated January 18, 2011, and affirms that this regulation is 
consistent with the guidance therein.

Executive Orders 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 12372 and 
13132.

Executive Order 13175 Consultation and Coordination With Indian Tribal 
Governments

    The Department has determined that this rulemaking will not have 
tribal implications, will not impose substantial direct compliance 
costs on Indian tribal governments, and will not pre-empt tribal law. 
Accordingly, the requirements of Executive Order 13175 do not apply to 
this rulemaking.

Executive Order 12988: Civil Justice Reform

    The Department has reviewed this interim final rule in light of 
Executive Order 12988 to eliminate ambiguity, minimize litigation, 
establish clear legal standards, and reduce burden.

[[Page 5908]]

Paperwork Reduction Act

    This rule does not impose any new information collections subject 
to the Paperwork Reduction Act, 44 U.S.C., Chapter 35. The Department 
anticipates between 100 and 4,100 additional nonimmigrant visa 
applicants per year as a result of this rulemaking. The current burden 
for this information collection (OMB Control No. 1405-0182) is 
13,875,345 hours, with 11,100,276 respondents. The burden per response 
is 75 minutes. The top estimate for the number of additional 
respondents would add approximately 5,000 hours to a burden that is 
almost 14 million hours. Therefore, the addition of these respondents 
does not significantly increase the burden associated with this 
information collection.

List of Subjects in 22 CFR Part 41

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

    For the reasons stated in the preamble, the Department of State is 
amending 22 CFR part 41 to read as follows:

PART 41--[AMENDED]

0
1. The authority citation for part 41 is revised to read as follows:

    Authority: 22 U.S.C. 2651a; 8 U.S.C. 1104; Pub. L. 105-277, 112 
Stat. 2681-795 through 2681-801; 8 U.S.C. 1185 note (section 7209 of 
Pub. L. 108-458, as amended by section 546 of Pub. L. 109-295).


0
2. Amend Sec.  41.2 as follows:
0
a. Remove paragraph (e).
0
b. Redesignate paragraphs (f) through (m) as paragraphs (e) through 
(l).
0
c. Revise redesignated paragraph (e)(2)(iv).
    The revisions read as follows:


Sec.  41.2  Exemption or waiver by Secretary of State and Secretary of 
Homeland Security of passport and/or visa requirements for certain 
categories of nonimmigrants.

* * * * *
    (e) * * *
    (2) * * *
    (iv) Presents a current certificate issued by the Royal Virgin 
Islands Police Force indicating that he or she has no criminal record.
* * * * *

    Dated: January 22, 2016.
David T. Donahue,
Acting Assistant Secretary for Consular Affairs, Department of State.
[FR Doc. 2016-02191 Filed 2-3-16; 8:45 am]
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