[Federal Register Volume 81, Number 203 (Thursday, October 20, 2016)]
[Rules and Regulations]
[Pages 72481-72493]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-25321]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
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Federal Register / Vol. 81, No. 203 / Thursday, October 20, 2016 /
Rules and Regulations
[[Page 72481]]
DEPARTMENT OF HOMELAND SECURITY
8 CFR Parts 212, 214, 215, and 273
[USCBP-2016-0046; CBP Dec. No. 16-17]
RIN 1651-AB08
Establishment of the Electronic Visa Update System (EVUS)
AGENCY: U.S. Customs and Border Protection, U.S. Department of Homeland
Security.
ACTION: Final rule.
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SUMMARY: This rule amends the Department of Homeland Security's
regulations to establish the Electronic Visa Update System (``EVUS'').
This system will allow for the collection of biographic and other
information from nonimmigrant aliens who hold a passport issued by an
identified country containing a U.S. nonimmigrant visa of a designated
category. Nonimmigrant aliens subject to these regulations must
periodically enroll in EVUS and obtain a notification of compliance
with EVUS prior to travel to the United States. Individuals subject to
the EVUS regulations must comply with EVUS in order to maintain the
validity of their visas falling within a designated category. The
Department of State is publishing a parallel rule to amend its visa
regulations to reflect the new EVUS requirements.
DATES: Effective Date: This final rule is effective on October 20,
2016.
Compliance Dates: The compliance date is November 29, 2016 or as
set forth in Sec. 215.24(c).
Comments: Comments must be received on or before January 18, 2017.
ADDRESSES: You may submit comments, identified by docket number, by one
of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments via docket number
USCBP-2016-0046.
Mail: Border Security Regulations Branch, Office of
International Trade, Customs and Border Protection, Regulations and
Rulings, Attention: Border Security Regulations Branch, 90 K Street
NE., 10th Floor, Washington, DC 20229.
Instructions: All submissions received must include the agency name
and docket number for this rulemaking. All comments received will be
posted without change to http://www.regulations.gov, including any
personal information provided. For detailed instructions on submitting
comments and additional information the rulemaking process, see the
``Public Participation'' heading of the SUPPLEMENTARY INFORMATION
section of this document.
Docket: For access to the docket to read background documents, go
to http://www.regulations.gov. Submitted comments may also be inspected
during regular business days between the hours of 9 a.m. and 4:30 p.m.
at the Border Security Regulations Branch, Office of International
Trade, U.S. Customs and Border Protection, 90 K Street NE., 10th Floor,
Washington, DC. Arrangements to inspect submitted comments should be
made in advance by calling Mr. Joseph Clark at (202) 325-0118.
FOR FURTHER INFORMATION CONTACT: Suzanne Shepherd, Office of Field
Operations, [email protected] or (202) 344-2073.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Public Participation
II. Background
A. Purpose
B. Legal Authority
C. Amendments to the DHS Regulations To Establish the Electronic
Visa Update System
1. Enrollment in EVUS
2. Notification of Compliance
3. EVUS in the Context of Travel to the United States
4. Validity Period of Notification of Compliance
5. Schedule for EVUS Enrollment and Re-Enrollment
a. Initial Enrollment
b. EVUS Re-Enrollment Prior to Travel to the United States
6. Required EVUS Data Elements
7. Events Requiring EVUS Re-Enrollment
8. Noncompliance, Expiration of Notification of Compliance, and
Change in EVUS Status Resulting in Rescission of Notification of
Compliance
D. Other Amendments to the DHS Regulations to Reference EVUS
E. Compliance Dates and Early Enrollment Period for EVUS
III. Statutory and Regulatory Requirements
A. Administrative Procedure Act
B. Congressional Review Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act of 1995
E. Executive Order 13563 (Improving Regulation and Regulatory
Review) and Executive Order 12866 (Regulatory Planning and Review)
1. Purpose of Rule
2. Population Affected by Rule
3. Costs of Rule
4. Benefits of Rule
5. Net Impact of Rule
F. Executive Order 13132
G. Executive Order 12988 Civil Justice Reform
H. Paperwork Reduction Act
I. Privacy
List of Subjects
Amendments to the Regulations
I. Public Participation
Interested persons may submit comments on this rulemaking by
submitting written data, views, or arguments on all aspects of this
final rule. Based on the comments received, DHS may revise this rule in
the future.
II. Background
A. Purpose
Congress has conferred upon the Secretary of Homeland Security the
authority to establish reasonable conditions on the entry of
nonimmigrant aliens into the United States. The Department of Homeland
Security (``DHS''), for example, may, by regulation, set conditions for
an alien's admission as a nonimmigrant, see Immigration and Nationality
Act (``INA'') 214(a)(1), 8 U.S.C. 1184(a)(1), and, more generally,
establish reasonable regulations governing aliens' entry or admission
into and departure from the United States, see INA 215(a)(1), 8 U.S.C.
1185(a)(1).\1\ See also INA 103(a)(1), (a)(3), 8 U.S.C. 1103(a)(1),
(a)(3); 6 U.S.C. 202(4).
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\1\ The President assigned to the Secretary of Homeland Security
(acting with the concurrence of the Secretary of State) the
functions under INA 215(a) with respect to noncitizens. E.O. 13323,
69 FR 241 (Dec. 30, 2003).
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Every alien applying for admission to the United States as a
nonimmigrant must establish that he or she is admissible to the United
States. See INA
[[Page 72482]]
235(b)(2)(A), 291, 8 U.S.C. 1225(b)(2)(A), 1361; 8 CFR 214.1(a)(3),
235.1(f), 235.3. Upon application for admission, the alien must present
a valid passport and valid visa unless either or both document
requirements have been waived. See INA 212(a)(7)(B), 8 U.S.C.
1182(a)(7)(B); 8 CFR 212.1; see also INA 217, 8 U.S.C. 1187; 8 CFR 217.
Nonimmigrant aliens who need a visa to travel to and apply for
admission to the United States may be eligible for one of 20 primary
nonimmigrant classifications, depending on their specific purposes and
qualifications. See INA 101(a)(15), 8 U.S.C. 1101(a)(15) (defining
nonimmigrant classifications); see also U.S. Department of State,
Bureau of Consular Affairs, ``Directory of Visa Categories'' (listing
visa categories).\2\ The burden of establishing admissibility and other
eligibility to enter the United States lies with the applicant for
admission. See, e.g., INA 291, 8 U.S.C. 1361; 8 CFR 235.1(f).
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\2\ This directory is available at http://travel.state.gov/content/visas/en/general/all-visa-categories.html.
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The nonimmigrant visa application process generally requires the
alien to fill out an application, pay a visa application fee, and
appear for an interview before a consular officer at a U.S. embassy or
consulate. Every visa applicant undergoes extensive security checks
before a visa is issued. At the U.S. embassy or consulate, officials
review the alien's application, collect the applicant's fingerprints,
and check the applicant's name against the Department of State's
(``DOS'') Consular Lookout and Support System (CLASS) as well as
various other government watchlists. A consular officer reviews the
name check results and determines whether additional security checks
are required. The consular officer then generally interviews the visa
applicant and reviews his or her application and supporting documents.
When all required processing is completed, and if the alien is
found eligible, the consular officer issues a nonimmigrant visa to the
alien. The validity period of a nonimmigrant visa varies by category
and the country that issues the nonimmigrant alien's passport.\3\ When
an alien's visa validity period expires, the alien will need to renew
his or her visa in order to travel to the United States. The process is
generally the same whether a person is applying for a visa for the
first time or renewing an expired visa. This means that to renew a visa
the alien must submit a new application, which requires updated
information, pay the visa application fee, and undergo another
interview by consular officials, unless the interview is waived.\4\ The
information updates provided through the visa re-application process
include basic biographical and eligibility elements that can change
over time (e.g., address, name, employment, criminal history).
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\3\ To determine the validity period of a specific visa category
for a given country, a nonimmigrant alien will need to consult the
reciprocity schedule for the country that issued his or her passport
at www.travel.state.gov/content/visas/en/fees/reciprocity-by-country.html.
\4\ The visa interview can be waived in certain circumstances,
including for renewals that meet specific requirements. See INA
222(h)(1)(B), 8 U.S.C. 1202(h)(1)(B); 9 FAM 403.5-4(A), available at
https://fam.state.gov/FAM/09FAM/09FAM040305.html.
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Visa validity periods can vary considerably, and some visas are
valid for extended periods of up to ten years, and often for multiple
entries. Frequent travelers to the United States who hold visas with
short validity periods have to reapply more frequently than those who
hold visas with longer validity periods. While visas with a longer
validity period provide an opportunity for individuals to travel to the
United States with greater ease, they do not enable the U.S. Government
to receive regularly updated biographic and other information from
repeat visitors who travel to the United States multiple times over the
span of the visa. As such, aliens traveling on these visas with longer
validity periods are screened using traveler information that is not as
recent as for aliens who must obtain visas more frequently.
Because changes to biographical and eligibility elements could
impact whether an individual may be admissible to the United States, it
would be beneficial to have a mechanism for obtaining this updated
information in advance of the individual's travel to the United States
when the Secretary, in consultation with the Secretary of State,
determines that it is warranted with respect to a given country and
nonimmigrant visa category. Having a means for regularly collecting
updated information, before the alien embarks on travel to the United
States and without requiring aliens to apply for a visa on a more
frequent basis, would be valuable in contributing to a robust traveler
screening and verification process and would cut down on the number of
visa holders who are found inadmissible at ports of entry.\5\
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\5\ Consistent with other DHS regulations, the term ``port of
entry'' includes preclearance or immigration preinspection, which
are CBP facilities in a foreign location where immigration
preinspection, among other things, occurs prior to travel to the
United States. See INA 235A, 8 U.S.C. 1225a; 8 CFR 235.5.
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Given these concerns and considerations, DHS has developed the
Electronic Visa Update System (``EVUS''), which provides a mechanism
through which information updates can be obtained from nonimmigrant
aliens who hold a passport issued by an identified country containing a
U.S. nonimmigrant visa of a designated category. EVUS will provide for
greater efficiencies in the screening of international travelers by
allowing DHS to identify subjects of potential interest before they
depart for the United States, thereby increasing security and reducing
traveler delays upon arrival at U.S. ports of entry. EVUS will aid DHS
in facilitating legitimate travel while also ensuring public safety and
national security.
In this final rule, DHS is amending its regulations to establish
EVUS. In a parallel rule, ``Visa Information Update Requirements under
the Electronic Visa Update System (EVUS)'' (RIN 1400-AD93) (hereinafter
``DOS's EVUS Rule''), also published in this Federal Register, DOS is
amending its regulations to provide for the automatic provisional
revocation of visas held by nonimmigrant aliens subject to the EVUS
requirements for failure to comply with those requirements.
DHS and DOS anticipate that EVUS may eventually be expanded to
include a number of countries and visa categories. However, as
announced in a separate notice being published in this issue of the
Federal Register, the program will initially be limited to nonimmigrant
aliens who hold unrestricted, maximum validity B-1 (business visitor),
B-2 (visitor for pleasure), or combination B-1/B-2 visas, which are
generally valid for 10 years,\6\ contained in a passport issued by the
People's Republic of China (``PRC'').\7\
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\6\ This includes visas issued for more than nine years and all
replacement visas issued to correct errors in the original instance.
\7\ B category visas are considered ``visitor visas.'' Visitor
visas are nonimmigrant visas for individuals seeking admission to
the United States temporarily for business (visa category B-1),
tourism or pleasure, (visa category B-2), or a combination of both
purposes (visa category B-1/B-2). Maximum validity for B category
visas contained in a passport issued by the People's Republic of
China, is generally ten years, but includes visas issued for more
than nine years and all replacement visas issued to correct errors
in the original visa.
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B. Legal Authority
DHS and DOS are establishing EVUS primarily under the authorities
granted in INA sections 103 (8 U.S.C. 1103), 214 (8 U.S.C. 1184), 215
(8 U.S.C. 1185), and 221 (8 U.S.C. 1201); and sections 402(4)
[[Page 72483]]
and 428(b) of the Homeland Security Act (``HSA''), 6 U.S.C. 202(4),
236(b). Section 221(a)(1)(B) of the INA authorizes DOS to issue
nonimmigrant visas to foreign nationals. Section 221(c) provides that
``[a] nonimmigrant visa shall be valid for such periods as shall be by
regulations prescribed,'' and section 221(i) authorizes the Secretary
of State to revoke visas at any time in his or her discretion. See also
22 CFR 41.122. Section 214(a)(1) of the INA authorizes DHS to establish
by regulation conditions for a nonimmigrant alien's admission to the
United States, 8 U.S.C. 1184(a)(1); and section 215(a)(1) provides DHS
with authority to set reasonable rules restricting aliens' entry into
and departure from the United States.\8\ 8 U.S.C. 1185(a)(1). Section
103(a) of the INA authorizes the Secretary of Homeland Security to
administer and enforce the INA and other laws relating to the
immigration and naturalization of aliens, and to establish such
regulations as he deems necessary for carrying out his authority. 8
U.S.C. 1103(a). Sections 402(4) and 428(b) of the HSA generally confers
upon the Secretary the authority to establish and administer rules
governing the granting of visas. 6 U.S.C. 202(4), 236(b).
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\8\ See supra note 1.
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These broad authorities allow DHS to set conditions for admission
or entry into the United States and DOS to revoke visas subject to the
fulfillment of these conditions. Together, these authorities allow DHS
to establish an electronic visa information update system to collect
periodic biographic and other updates and for DOS to provisionally
revoke a nonimmigrant alien's visa for failure to meet DHS's conditions
for admission or entry as outlined in the EVUS regulations set forth in
this final rule and the companion DOS rulemaking.
Through the issuance of these regulations outlined below, DHS is
conditioning the admission or entry of nonimmigrant aliens who hold a
passport issued by an identified country containing a U.S. nonimmigrant
visa of a designated category on compliance with EVUS. Through the
issuance of DOS's rule on EVUS, as specified in 22 CFR 41.122(b)(3),
failure to comply with this condition triggers the automatic
provisional revocation of the regulated individual's visa, which will
prevent travel to the United States on that visa. Once the visa holder
successfully enrolls in EVUS, the provisional revocation will be
automatically reversed and the visa will be valid for travel to the
United States. See DOS's EVUS Rule.
C. Amendments to the DHS Regulations To Establish the Electronic Visa
Update System
This rule amends 8 CFR by renaming part 215 ``Controls of Aliens
Departing from the United States; Electronic Visa Update System,''
placing the existing Sec. Sec. 215.1 through 215.9 into a subpart A
entitled ``Controls of Aliens Departing from the United States'' and
adding new sections in a subpart B, entitled ``Electronic Visa Update
System.'' New subpart B describes the purpose of EVUS, who it applies
to, and its requirements. It also contains definitions that apply
throughout that subpart.
As provided in part 215, subpart B, EVUS is an online information
update system that requires nonimmigrant aliens who hold a passport
issued by an identified country containing a U.S. nonimmigrant visa of
a designated category to provide information updates through periodic
EVUS enrollment. The Secretary will identify countries (``EVUS
countries'') whose passport holders will be subject to the EVUS
regulations and designate applicable visa categories. This regulation
would potentially apply to both single and multiple use visas. Notice
of identified countries and designated visa categories will be
published in the Federal Register. A nonimmigrant alien who holds a
passport issued by an EVUS country containing a U.S. nonimmigrant visa
of a designated category is referred to in part 215, subpart B, as a
``covered alien.'' Each covered alien must comply with EVUS in order to
ensure the continued validity of his or her visa. A covered alien will
not be allowed to board an air or sea carrier destined for the United
States unless he or she complies with EVUS. Failure to enroll in EVUS
according to the regulations will result in the automatic provisional
revocation of the individual's visa pursuant to DOS's regulations in 22
CFR 41.122(b)(3). See DOS's EVUS Rule.
1. Enrollment in EVUS
To enroll in EVUS, the covered alien must go online to www.EVUS.gov
and provide truthful, accurate, and complete responses to all of the
required questions. At this time, the EVUS enrollment may be completed
by the covered alien or by a third party, such as a friend, relative,
or travel industry professional, at the direction of the covered alien.
The third party may submit the required information on the alien's
behalf, although the alien is responsible for the truthfulness and
accuracy of all information submitted.
After the enrollment information is submitted, the submitter will
receive an electronic status message on the EVUS enrollment Web site
stating ``enrolled,'' ``pending,'' ``unsuccessful,'' or ``The State
Department has revoked your visa.'' The U.S. Customs and Border
Protection (``CBP'') anticipates that each EVUS enrollment attempt will
be adjudicated within 72 hours of submission, although most results
will be received shortly after submission. An ``enrolled'' message
indicates that the submission was successful and that the covered alien
has a valid notification of compliance. For more details, see the
section below, ``Notification of Compliance.'' If a ``pending'' message
is received, the alien will need to return to the Web site at a later
time to verify successful enrollment.
In some circumstances, the submitter may receive an
``unsuccessful'' message. This may occur for reasons including, but not
limited to, the alien's failure to provide adequate responses to the
EVUS questions, the alien's attempt to use an invalid passport or visa,
such as an expired document or one reported lost or stolen, or
irreconcilable errors discovered relating to the information the alien
provided as part of an attempted EVUS enrollment. An unsuccessful EVUS
enrollment after November 29, 2016 means that the covered alien's visa
will be automatically provisionally revoked. An unsuccessful enrollment
does not cause the underlying visa to be permanently revoked. A covered
alien may reattempt enrollment any number of times, subsequent to
receiving an ``unsuccessful'' message.
If the submitter receives a message stating that ``The State
Department has revoked your visa,'' the submitter will not be permitted
to travel to the United States on that visa until a new visa
application has been submitted to DOS, a new visa has been issued, and
the submitter has successfully enrolled in EVUS based on his or her new
visa.
2. Notification of Compliance
Upon successful enrollment in EVUS, CBP will issue a notification
of compliance to the covered alien. In most cases, this notification of
compliance will be issued immediately, appearing on the next page of
the EVUS Web site after submission of the EVUS enrollment information.
CBP will not send an email or letter to the alien notifying them of
their enrollment status. It is the alien's responsibility to verify
whether he or she has a valid notification of compliance. The alien
[[Page 72484]]
can do this by returning to the EVUS Web site and following the
instructions provided there.
The notification of compliance is a positive determination that the
individual's visa is not automatically provisionally revoked and is
considered valid for travel to the United States as of the time of the
notification. See DOS's EVUS Rule; see also 22 CFR 41.122(b)(3).
As explained in the section below, ``Duration of Notification of
Compliance,'' as a general rule, a notification of compliance is valid
for a period of two years. For immigration purposes, a covered alien
may travel to the United States repeatedly using the same notification
of compliance, as long as the notification of compliance and the
underlying visa remain valid.
3. EVUS in the Context of Travel to the United States
When a covered alien seeks to board a commercial aircraft or vessel
carrier for travel to a U.S. air or sea port of entry, the carrier will
verify that the traveler has a valid notification of compliance before
allowing the alien to board. When a covered alien arrives at a U.S.
land port of entry, the CBP officer at the port of entry will verify
that the traveler has a valid notification of compliance before
conducting further assessment on the admissibility of the traveler.
A notification of compliance only allows a covered alien to board a
conveyance for travel to a U.S. air or sea port of entry, or to apply
for admission at a land port of entry. It does not restrict, limit, or
otherwise affect the authority of CBP officers to determine an alien's
admissibility to the United States during inspection at a port of entry
or the respective authorities of DHS and DOS to refuse or revoke a
nonimmigrant visa.
4. Validity Period of Notification of Compliance
As a general rule, a notification of compliance will be valid for a
period of two years. If a covered alien's passport or visa will expire
in less than two years from the date the notification of compliance is
issued, the notification will be valid only until the date of
expiration of the passport or visa, whichever is sooner. Individuals
who have successfully enrolled in EVUS may return to the EVUS Web site
at any time to verify their EVUS status and notification of compliance
expiration date.
The Secretary, in consultation with the Secretary of State, may
increase or decrease the notification of compliance validity period for
any EVUS country. Any changes to the validity period will be done
through rulemaking. The EVUS Web site will also be updated to reflect
the specific duration of notification of compliance validity periods
for each EVUS country.
If a covered alien does not re-enroll in EVUS before his or her
notification of compliance expires, his or her visa will be
automatically provisionally revoked and the alien may not travel to the
United States on that visa unless or until the alien re-enrolls in EVUS
and obtains a new notification of compliance. Furthermore, a
notification of compliance is not valid unless the alien's passport and
designated visa are also valid.
5. Schedule for EVUS Enrollment and Re-Enrollment
As explained below in more detail, EVUS requires each covered alien
to initially enroll after receiving his or her designated visa and to
re-enroll in the context of travel if the initial or an earlier
notification of compliance is no longer valid.
a. Initial Enrollment
Following are the requirements for initial enrollment in EVUS. As
explained below, as of November 29, 2016, no covered alien will be
permitted to travel to the United States on a visa subject to EVUS,
without a valid notification of compliance. Any covered alien who
received his or her visa of a designated category prior to November 29,
2016, must initially enroll in EVUS by December 14, 2016, unless the
alien intends to travel to the United States before that date. In such
case, a covered alien intending to arrive at an air or sea port of
entry must have a notification of compliance that is valid prior to
boarding a carrier destined for travel to the United States, and an
alien intending to arrive at a land port of entry must have a
notification of compliance that is valid prior to application for
admission.
In contrast, any covered alien who receives his or her visa of a
designated category on or after November 29, 2016 must initially enroll
in EVUS upon receipt of his or her visa. Enrollment upon receipt of the
visa is necessary because, based on CBP's data on crossing history and
visa issuance, most visitors to the United States travel within six
months of visa issuance. To alleviate the reporting burden, EVUS will
pre-populate the data elements that are duplicated on the visa
application for recent visa issuances
Failure to initially enroll in EVUS as described above will result
in the automatic provisional revocation of the covered alien's visa.
The alien will not be authorized to travel to the United States on that
visa unless or until the alien enrolls in EVUS and obtains a
notification of compliance.
b. EVUS Re-Enrollment Prior to Travel to the United States
A covered alien must have a valid notification of compliance in
order to travel to the United States on his or her visa of a designated
category. To comply with this requirement, the individual must re-
enroll in EVUS if his or her initial or most recent notification of
compliance has expired, or will expire, prior to the following
timeframes. A covered alien intending to arrive at an air or sea port
of entry must have a notification of compliance that is valid prior to
boarding a carrier destined for travel to the United States and that
will remain valid through the date when the alien will arrive at the
port of entry. A covered alien intending to arrive at a land port of
entry must have a notification of compliance that is valid through the
date of the alien's application for admission into the United States.
A covered alien may travel to the United States repeatedly using
the same notification of compliance, as long as it remains valid
through the timeframe described above and the underlying visa remains
valid. If a covered alien needs a new notification of compliance in
order to meet the relevant timeframe, DHS recommends that he or she re-
enroll in EVUS at least 72 hours in advance of his or her intended
departure to the United States.
6. Required EVUS Data Elements
The information required for EVUS enrollment is information that
DHS, after consultation with DOS, has deemed necessary to evaluate
whether a covered alien's travel to the United States poses a law
enforcement or security risk. It includes biographical data such as
name, birth date, and passport information, as well as travel
information such as travel details and the alien's contact information
in the United States. Covered aliens must also answer eligibility
questions regarding, for example: Infection with communicable diseases
of public health significance, existence of arrests or convictions for
certain crimes, and past history of visa or admission denial.
The EVUS enrollment questions will be available in multiple
languages, including English and the official language(s) of the
covered alien's EVUS country. Although the covered alien must provide
responses to most of the
[[Page 72485]]
data elements in English, some of the information, such as the alien's
name and address, can or must also be provided in the official
language(s) of the alien's EVUS country.
The information submitted by the alien will be checked by DHS
against all appropriate databases, including, but not limited to, lost
and stolen passport databases and appropriate watchlists.
7. Events Requiring EVUS Re-Enrollment
Covered aliens must re-enroll in EVUS and obtain a new notification
of compliance if any of the following occur:
(a) The alien is issued a new passport or new nonimmigrant visa of
a designated category;
(b) The alien changes his or her name;
(c) The alien changes his or her gender;
(d) There is any change to the alien's country of citizenship or
nationality, including becoming a dual national; or
(e) The circumstances underlying the alien's previous responses to
any of the EVUS enrollment questions requiring a ``yes'' or ``no''
response (eligibility questions) have changed.
8. Noncompliance, Expiration of Notification of Compliance, and Change
in EVUS Status Resulting in Rescission of Notification of Compliance
An individual subject to the EVUS requirements must take
affirmative actions to ensure and maintain the validity of his or her
visa, pursuant to 22 CFR 41.122(b)(3). Failure to initially enroll in
EVUS as described above will result in the automatic provisional
revocation of the covered alien's visa. Furthermore, once a covered
alien's notification of compliance has expired, his or her visa will be
automatically provisionally revoked. In order to prevent the automatic
provisional revocation of his or her visa, or to re-instate the
validity of the visa after it has been provisionally revoked in these
circumstances, the alien must successfully enroll or re-enroll in EVUS
and obtain a valid notification of compliance.
In the event that a covered alien's EVUS enrollment is
unsuccessful, his or her visa will also be automatically provisionally
revoked. Under these circumstances, the alien may re-attempt enrollment
or contact CBP for further guidance. Additionally, in the event that
irreconcilable errors are discovered after the issuance of a
notification of compliance, or other circumstances occur, such as a
change in the validity period of the notification of compliance, CBP
may rescind the notification of compliance.\9\ If a covered alien's
notification of compliance is rescinded, his or her visa will be
automatically provisionally revoked. In this circumstance, the alien
may re-attempt enrollment or contact CBP for further guidance.
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\9\ CBP will send an email to the address provided during
enrollment to attempt to notify the covered alien about the
rescission of his or her notification of compliance.
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For more information on the automatic provisional revocation of
visas in the context of EVUS, please see DOS's EVUS rule.
D. Other Amendments to the DHS Regulations To Reference EVUS
In establishing EVUS, several other sections of the DHS regulations
must be amended to reference the new part 215, subpart B, of title 8 of
the Code of Federal Regulations (``CFR''). Section 212.1 (``Documentary
Requirements for Nonimmigrants'') is being revised to specify that when
presenting documents for admission, the nonimmigrant alien's visa must
meet the requirements of part 215, subpart B, if applicable. Section
212.1 is also being revised to remove the phrase ``valid for the period
set forth in section 212(a)(26) of this Act'' as a descriptor of the
passport an alien must present upon application for admission. That
section of the INA no longer exists, making the reference obsolete.
Section 214.1(a)(3) (``Requirements for Admission, Extension, and
Maintenance of Status'') is being revised to note that an alien's
admission to the United States as a nonimmigrant is now conditioned on
compliance with part 215, subpart B, if applicable.
Lastly, Sec. 273.3, regarding screening procedures, is also being
revised to reflect EVUS requirements. Section 273.3 lists the screening
procedures that owners, operators, or agents of carriers which
transport passengers to the United States must follow to be eligible to
apply for a reduction, refund, or waiver of fines imposed under section
273 of the INA, 8 U.S.C. 1323, for bringing aliens to the United States
without the required travel documents. Section 273.3(b)(1) is being
revised to add a new paragraph that specifies that carrier personnel,
when screening passengers prior to boarding, should ensure that covered
aliens have complied with EVUS as appropriate. Additionally, a new
Sec. 273.3(b)(4) is being added to address the procedures that
carriers should follow to ensure that a covered alien has a valid
notification of compliance before allowing him or her to board. This
provision specifies that carriers should transmit the visa number of
any passenger who requires a visa. The carrier should transmit this
information using the Advance Passenger Information System
(``APIS'').\10\ CBP will then use the visa number to ascertain whether
the alien requires a notification of compliance with EVUS and if so,
whether the alien has a valid notification of compliance. CBP will
relay this information back to the carrier, and the carrier should use
this information in determining whether to board the passenger.
---------------------------------------------------------------------------
\10\ This provision does not create a new APIS requirement, it
only provides that carriers use the APIS system to transmit the visa
information.
---------------------------------------------------------------------------
E. Compliance Dates and Early Enrollment Period for EVUS
As provided in Sec. 215.24(c), covered aliens must initially
enroll in EVUS as early as November 29, 2016, depending on the date on
which the alien received his or her visa of a designated category and
on his or her specific plans to travel to the United States. As of
November 29, 2016, no covered alien will be authorized to travel to the
United States on his or her visa of a designated category unless or
until the alien enrolls in EVUS and obtains a notification of
compliance.
As of the effective date of this rule, CBP will allow covered
aliens to voluntarily enroll in EVUS prior to the mandatory compliance
dates. This will allow covered aliens to familiarize themselves with
the online tool and to meet the update requirements associated with
EVUS well in advance of the mandatory compliance dates. A notification
of compliance received during the early enrollment period will
generally be valid for two years from the date of issuance, subject to
the same limitations as notifications of compliance received after the
mandatory compliance dates as provided in Sec. 215.24(b).
The compliance date for the new requirements set forth in Sec.
273.3, regarding carriers' screening procedures, is November 29, 2016.
III. Statutory and Regulatory Requirements
A. Administrative Procedure Act
This final rule is excluded from the rulemaking provisions of 5
U.S.C. 553 as a foreign affairs function of the United States because
it advances the President's foreign policy goals regarding the issuance
of visas, involves a diplomatic arrangement with another country
regarding reciprocal changes to temporary visitor for business and
pleasure, student, and exchange visitor
[[Page 72486]]
visas, and directly involves relationships between the United States
and its alien visitors. See 5 U.S.C. 553(a)(1). This determination was
reached after consultation with DOS, which is also asserting the
foreign affairs function exception in their parallel rule. Accordingly,
DHS is not required to provide public notice and an opportunity to
comment before implementing the requirements under this final rule.
B. Congressional Review Act
Under the Congressional Review Act, a rule that is likely to result
in an annual effect on the U.S. economy of $100,000,000 or more is
considered a major rule. See 5 U.S.C. 804. Generally, the effective
date of a major rule must be the later of these two dates: 60 days
after publication in the Federal Register, or 60 days after delivery of
the report to Congress. See 5 U.S.C. 801(a)(3). DHS has concluded in
section III.E that this rule is likely to result in an annual effect on
the U.S. economy of $100,000,000 or more. Therefore, it meets the
criteria for a major rule. However, as provided in 5 U.S.C. 808,
notwithstanding section 801, any rule which an agency for good cause
finds (and incorporates the finding and a brief statement or reasons
therefor) that notice and public procedure thereon are impractical,
unnecessary, or contrary to the public interest, shall take effect at
such time as the agency promulgating the rule determines. As discussed
below, DHS finds for good cause that notice and public procedure
thereon are impractical and contrary to the public interest.
This rule improves the security of issuing certain visas with
longer validity periods to nonimmigrant aliens who hold a passport
issued by an identified country. By requiring covered aliens to provide
regular updated biographic and other information, DHS is better
positioned to obtain updated information from these individuals and to
screen them before they embark on travel to the United States.
Implementation of this rule as soon as possible is necessary to protect
the national security of the United States and to prevent potential
wrongdoers from exploiting visas with longer validity periods when they
are issued to nonimmigrant aliens who hold a passport issued by a
country identified by the Secretary. Therefore, DHS finds for good
cause that notice and public comment are impractical and contrary to
the public interest. Accordingly, the effective date pursuant to 5
U.S.C. 808 may be the date the agency determines and DHS has determined
that the rule will take effect immediately upon publication, but the
compliance date is November 29, 2016, or as set forth in section
215.24(c).
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.), as amended
by the Small Business Regulatory Enforcement and Fairness Act of 1996,
requires an agency to prepare and make available to the public a
regulatory flexibility analysis that describes the effect of a proposed
rule on small entities (i.e., small businesses, small organizations,
and small governmental jurisdictions) when the agency is required to
publish a general notice of proposed rulemaking for a rule. Since a
general notice of proposed rulemaking is not necessary for this rule,
CBP is not required to prepare a regulatory flexibility analysis for
this rule.
D. Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA),
enacted as Public Law 104-4 on March 22, 1995, requires each Federal
agency, to the extent permitted by law, to prepare a written assessment
of the effects of any Federal mandate in a proposed or final agency
rule that may result in the expenditure by State, local, and tribal
governments, in the aggregate, or by the private sector, of
$100,000,000 or more (adjusted annually for inflation) in any one year.
Section 204(a) of the UMRA, 2 U.S.C. 1534(a), requires the Federal
agency to develop an effective process to permit timely input by
elected officers (or their designees) of State, local, and tribal
governments on a proposed ``significant intergovernmental mandate.'' A
``significant intergovernmental mandate'' under the UMRA is any
provision in a Federal agency regulation that will impose an
enforceable duty upon State, local, and tribal governments, in the
aggregate, of $100,000,000 (adjusted annually for inflation) in any one
year. Section 203 of the UMRA, 2 U.S.C. 1533, which supplements section
204(a), provides that, before establishing any regulatory requirements
that might significantly or uniquely affect small governments, the
agency shall have developed a plan that, among other things, provides
for notice to potentially affected small governments, if any, and for a
meaningful and timely opportunity to provide input in the development
of regulatory proposals. This rule would not impose a significant cost
or uniquely affect small governments. The rule does have an effect on
the private sector of $100,000,000 or more. This impact is discussed in
section III.E. entitled ``Executive Order 13563 and Executive Order
12866.''
E. Executive Order 13563 (Improving Regulation and Regulatory Review)
and Executive Order 12866 (Regulatory Planning and Review)
Executive Orders 13563 and 12866 direct agencies to assess the
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. Rules involving the foreign affairs function of the United
States are exempt from the requirements of Executive Order 12866. As
discussed above, EVUS advances the President's foreign policy goals
regarding the issuance of visas and directly involves relationships
between the United States and its alien visitors, and as such, DHS is
of the opinion that this rule is exempt from the requirements of
Executive Orders 13563 and 12866. However, DHS has nevertheless
reviewed this rule to ensure its consistency with the regulatory
philosophy and principles set forth in Executive Orders 13563 and
12866. DHS has prepared an economic analysis of the potential impacts
of this final rule for public awareness. A summary of the analysis is
presented below. The complete analysis can be found in the public
docket for this rulemaking at www.regulations.gov.
1. Purpose of Rule
Visa validity periods can vary considerably, and some visas are
valid for extended periods of up to ten years, and often for multiple
entries. Although these longer-term visas allow individuals to travel
repeatedly to the United States with greater ease and at lower cost,
they do not enable the U.S. Government to receive regular information
about the travelers that could impact whether they are admissible to
the United States over the entire span of the visa. Because changes to
biographical and eligibility elements could impact whether an
individual may be admissible to the United States, it would be
beneficial to have a mechanism for obtaining this updated information
in advance of the individual's travel to the United States when the
Secretary, in consultation with the Secretary of State, determines
[[Page 72487]]
that it is warranted with respect to a given country and nonimmigrant
visa category. To maintain the needed levels of security when granting
longer-term visas, this rule and a corresponding DOS rule will
establish EVUS, an electronic mechanism for collecting biographical and
other information from nonimmigrant aliens who hold a passport issued
by an identified country containing a U.S. nonimmigrant visa of a
designated category. Nonimmigrant aliens subject to these regulations
(``covered aliens'') must periodically submit up-to-date biographical
and other information through an EVUS enrollment request and receive an
electronic notification of compliance indicating successful enrollment
in advance of travel or admission to the United States. Failure to
comply with EVUS will result in the automatic provisional revocation of
the covered alien's visa, rendering the covered alien inadmissible to
the United States on that visa and barring travel (by air and sea) on
that visa until certain requirements are met. Air and sea carriers that
offer travel to the United States will be responsible for verifying the
EVUS compliance statuses of covered aliens, a condition of visa
validity and admissibility, prior to boarding. CBP will continually
screen covered aliens with EVUS notifications of compliance, thus
providing more frequent enhanced traveler screening than short-term
visas provide. This continual screening will ensure that aliens
continue to meet U.S. security and admission requirements throughout
the validity period of their EVUS notification of compliance and visa.
CBP and DOS anticipate that EVUS may eventually be expanded to
include a number of countries and nonimmigrant visa categories.
However, as announced in the notice being published in this issue of
the Federal Register, the program will initially be limited to
nonimmigrant aliens holding unrestricted, maximum validity B-1
(business visitor), B-2 (visitor for pleasure), or combination B-1/B-2
visas contained in a passport issued by the People's Republic of China.
The following regulatory impact analysis summary and its corresponding
full analysis present the costs and benefits of EVUS in two ways: (1)
On a per-alien and per-carrier basis and (2) on an aggregate basis for
the population of covered aliens initially required to enroll in EVUS--
nonimmigrant aliens holding unrestricted, maximum validity B-1, B-2, or
B-1/B-2 nonimmigrant visas contained in a passport issued by the PRC
and who seek travel to the United States. When analyzing these impacts
of the rule, CBP does so against a baseline in which DOS issues one-
year B-1, B-2, and B-1/B-2 visas. CBP analyzes the impact of EVUS on a
one-year basis because the United States and the PRC agreed to longer-
length visa issuances on the condition of EVUS's forthcoming
implementation. To the extent that DHS/CBP and DOS expand EVUS to other
countries and visa categories, the impacts of EVUS outlined in this
analysis would be higher. CBP also anticipates that currently proposed
U.S. legislation establishing an $8.00 EVUS fee will pass in FY
2017.11 12 Such fee legislation would require covered aliens
to pay an $8.00 EVUS fee per enrollment request, while allowing CBP to
cover its costs of providing and administering EVUS. CBP includes the
EVUS fee revenue in this analysis as a proxy for CBP's expected costs
of setting up and administering EVUS.
---------------------------------------------------------------------------
\11\ See Office of Management and Budget. Budget of the United
States Government, Fiscal Year 2017. Available at https://www.whitehouse.gov/sites/default/files/omb/budget/fy2017/assets/budget.pdf. Accessed October 3, 2016.
\12\ A detailed study on the EVUS fee calculation, which serves
as the basis of the fee proposed in legislation, is available in the
public docket for the EVUS rulemaking at www.regulations.gov.
---------------------------------------------------------------------------
2. Population Affected by Rule
This EVUS rule will impact covered aliens, air and sea carriers,
CBP, and the public.\13\ Due to a myriad of factors that affect travel,
CBP used three different projection methods to estimate the population
of covered aliens initially affected by this rule--PRC B-1, B-2, and B-
1/B-2 visa holders--over a 10-year period of analysis spanning from
fiscal years (FYs) 2017 to 2026. Under CBP's primary estimation method,
EVUS enrollment requests will measure 56.9 million during the period of
analysis, with 56.9 million successful enrollments and about 2,100
unsuccessful enrollments (see Table 1).
---------------------------------------------------------------------------
\13\ For the purposes of this analysis, the public includes U.S.
residents and visitors.
Table 1--Projected Numbers of EVUS Enrollment Requests
[In millions]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Fiscal Year
------------------------------------------------------------------------------------------ Total
2017 2018 2019 2020 2021 2022 2023 2024 2025 2026
--------------------------------------------------------------------------------------------------------------------------------------------------------
Method 1 (Primary Estimate)--With Rule
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total EVUS Requests.................................. 3.6 3.4 3.8 4.2 4.7 5.2 5.7 6.4 9.6 10.5 56.9
Successful....................................... 3.6 3.4 3.8 4.2 4.7 5.2 5.7 6.4 9.6 10.5 56.9
Unsuccessful..................................... 0.0003 0.0001 0.0001 0.0001 0.0002 0.0002 0.0002 0.0002 0.0003 0.0003 0.0021
--------------------------------------------------------------------------------------------------------------------------------------------------------
Method 2--With Rule
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total EVUS Requests.................................. 3.5 3.3 3.6 3.9 4.3 4.7 5.1 5.5 8.5 9.2 51.6
Successful....................................... 3.5 3.3 3.6 3.9 4.3 4.7 5.1 5.5 8.5 9.2 51.6
Unsuccessful..................................... 0.0003 0.0001 0.0001 0.0001 0.0001 0.0002 0.0002 0.0002 0.0003 0.0003 0.0019
--------------------------------------------------------------------------------------------------------------------------------------------------------
Method 3--With Rule
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total EVUS Requests.................................. 3.7 3.5 4.0 4.5 5.1 5.8 6.5 7.4 10.8 12.0 63.4
Successful....................................... 3.7 3.5 4.0 4.5 5.1 5.8 6.5 7.4 10.8 12.0 63.3
Unsuccessful..................................... 0.0003 0.0001 0.0001 0.0002 0.0002 0.0002 0.0002 0.0002 0.0004 0.0004 0.0023
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes: The estimates in this table are contingent upon CBP's expectations of the population of covered aliens initially affected by this rule. Estimates
may not sum to total due to rounding.
[[Page 72488]]
On account of this rule's longer-term visas, PRC B-1, B-2, and B-1/
B-2 visa holders will be able to renew their visas on a less frequent
basis. In fact, based on coordination with DOS, CBP estimates that DOS
will issue 8.5 million fewer B-1, B-2, and B-1/B-2 visas to
nonimmigrant aliens holding passports issued by the PRC over the period
of analysis with EVUS's implementation according to CBP's primary
estimation method (see Table 2).
Table 2--Projected Numbers of PRC B-1, B-2, and B-1/B-2 Visas Issuances With and Without Rule
[In millions]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Fiscal Year
------------------------------------------------------------------------------------------ Total
2017 2018 2019 2020 2021 2022 2023 2024 2025 2026
--------------------------------------------------------------------------------------------------------------------------------------------------------
Method 1 (Primary Estimate)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Without Rule--Total PRC B-1, B-2, and B-1/B-2 Visa 2.4 2.8 3.4 4.0 4.7 5.6 6.7 8.0 9.5 11.3 58.5
Issuances...........................................
With Rule--Total PRC B-1, B-2, and B-1/B-2 Visa 2.6 3.0 3.4 3.7 4.1 4.6 5.1 5.7 8.5 9.3 50.0
Issuances...........................................
Difference........................................... -0.2 -0.2 0.0 0.3 0.6 1.1 1.6 2.3 1.0 2.0 8.5
--------------------------------------------------------------------------------------------------------------------------------------------------------
Method 2
--------------------------------------------------------------------------------------------------------------------------------------------------------
Without Rule--Total PRC B-1, B-2, and B-1/B-2 Visa 2.2 2.6 3.1 3.6 4.2 4.9 5.8 6.8 7.9 9.2 50.4
Issuances...........................................
With Rule--Total PRC B-1, B-2, and B-1/B-2 Visa 2.6 2.9 3.2 3.5 3.8 4.1 4.5 4.9 7.6 8.2 45.3
Issuances...........................................
Difference........................................... -0.3 -0.3 -0.1 0.1 0.4 0.8 1.3 1.8 0.3 1.1 5.1
--------------------------------------------------------------------------------------------------------------------------------------------------------
Method 3
--------------------------------------------------------------------------------------------------------------------------------------------------------
Without Rule--Total PRC B-1, B-2, and B-1/B-2 Visa 2.5 3.0 3.6 4.4 5.3 6.5 7.8 9.4 11.4 13.8 67.9
Issuances...........................................
With Rule--Total PRC B-1, B-2, and B-1/B-2 Visa 2.6 3.1 3.6 4.0 4.5 5.1 5.8 6.6 9.6 10.7 55.7
Issuances...........................................
Difference........................................... -0.2 -0.1 0.1 0.4 0.8 1.3 2.0 2.9 1.8 3.1 12.2
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Estimates may not sum to total due to rounding.
Because this rule presents a new traveler eligibility check for
U.S. travel, carriers that offer travel to the United States will need
to modify their APIS systems to allow for EVUS compliance
verifications. Based on its similar carrier requirements to the ESTA
Air and Sea Final Rule, CBP believes that this rule will initially
require 80 carriers to modify their APIS systems to confirm their
passengers' compliance with EVUS.\14\ In addition to covered aliens and
carriers, this rule will affect CBP and the public. EVUS's continual
traveler screening and advance inadmissibility determinations will
strengthen national security and facilitate legitimate travel,
providing important benefits to CBP and the public.
---------------------------------------------------------------------------
\14\ See 80 FR 32267 (June 8, 2015). This rule will apply to any
carrier transporting PRC passport holders, which is likely to be the
same as the carriers that transport VWP travelers. To the extent
that the number of carriers affected by this rule is an
overestimate, the costs of this rule would be lower.
---------------------------------------------------------------------------
3. Costs of Rule
Covered aliens, CBP, and air and sea carriers will bear all the
direct costs of this rule. As stated earlier, this EVUS rule will
require covered aliens to periodically submit up-to-date biographical
and other information through an EVUS enrollment request and receive a
notification of compliance indicating successful enrollment in advance
of travel or admission to the United States. Each EVUS enrollment
request will take a covered alien an estimated 25 minutes to complete,
at an opportunity cost of $19.21 per request.\15\ CBP expects to
sustain costs from providing and administering EVUS approximately equal
to the $8.00 EVUS fee that CBP anticipates covered aliens will pay
beginning in FY 2017. CBP also anticipates that each covered alien will
incur a foreign transaction fee of $0.02 per enrollment request.\16\
Together, CBP and covered aliens will incur undiscounted opportunity
costs and fee or government administration costs totaling $27.23 per
EVUS enrollment request, which will translate to an overall
undiscounted cost to the population of covered aliens initially
affected by this rule of $1.6 billion between FY 2017 and FY 2026 under
CBP's primary estimation method.
---------------------------------------------------------------------------
\15\ CBP bases this calculation on the U.S. Department of
Transportation's (``DOT'') hourly time value of $46.10 for all-
purpose, intercity air travelers. CBP believes that this DOT wage
rate provides the best available time value for covered aliens
initially affected by this rule and those affected if EVUS
requirements are expanded to include a number of countries and visa
categories. CBP posits that those traveling to the United States for
temporary leisure or business purposes likely have higher time
values and disposable income closer to the DOT rate than reflected
by the average wage rate of individuals in their country. CBP
acknowledges that this rate may not be entirely representative of
the initial population affected by this rule. To the extent that the
DOT rate is an overestimate, the costs and benefits of this rule
would be lower. CBP adjusted the DOT estimate reported in 2013 U.S.
dollars to 2017 U.S. dollars by applying a 1.0 percent annual growth
rate to the estimate, as recommended by DOT's value of travel time
guidance. Source: U.S. Department of Transportation, Office of
Transportation Policy. The Value of Travel Time Savings:
Departmental Guidance for Conducting Economic Evaluations Revision 2
(2015 Update). ``Table 4 (Revision 2--corrected): Recommended Hourly
Values of Travel Time Savings for All-Purpose, Intercity Air and
High-Speed Rail Travel'' (Apr. 29, 2015), available at http://www.transportation.gov/sites/dot.gov/files/docs/Revised%20Departmental%20Guidance%20on%20Valuation%20of%20Travel%20Time%20in%20Economic%20Analysis.pdf.
\16\ This $0.02 foreign transaction fee is based on the fee
charged by Unionpay, China's largest bank card provider.
---------------------------------------------------------------------------
CBP estimates that air and sea carriers will each spend an average
of $1.35 million during this rule's first year of implementation to
test and modify their APIS systems to allow for EVUS compliance checks,
and $150,000 in
[[Page 72489]]
subsequent years on system operation and maintenance related to EVUS
verifications. During the 10-year period of analysis, these costs will
total $2.7 million (undiscounted). Using the number of carriers
initially affected by this rule and their estimated EVUS-related costs,
the overall undiscounted cost of this rule to carriers will measure
$216.0 million over the entire period of analysis. To the extent that
carriers use their existing systems for EVUS compliance verifications,
the cost of this rule to carriers will be lower.
Collectively, the undiscounted costs of this rule will total $1.8
billion under CBP's primary estimation method. In present value terms,
the overall cost will equal $1.3 billion to $1.5 billion, while its
annualized cost will measure $168.9 million to $173.1 million (using 7
and 3 percent discount rates, respectively; see Table 3). These costs
vary according to the projection method and discount rate applied.
Table 3--Total Monetized Present Value and Annualized Costs of Rule, FY 2017-FY 2026
[In millions; 2017 U.S. dollars]
----------------------------------------------------------------------------------------------------------------
3% Discount rate 7% Discount rate
---------------------------------------------------------------
Present value Annualized Present value Annualized
cost cost cost cost
----------------------------------------------------------------------------------------------------------------
Method 1 (Primary Estimate)--With Rule.......... $1,520.9 $173.1 $1,269.7 $168.9
Method 2--With Rule............................. 1,401.7 159.5 1,176.1 156.5
Method 3--With Rule............................. 1,665.0 189.5 1,383.0 184.0
----------------------------------------------------------------------------------------------------------------
Note: The estimates in this table are contingent upon CBP's expectations of the population of covered aliens
initially affected by this rule and the discount rates applied.
4. Benefits of Rule
This rule will offer benefits to covered aliens, the public, air
and sea carriers, and CBP, with covered aliens enjoying the most
monetized benefits from this rule. The lengthened visa validity periods
negotiated based on implementation of this rule will allow PRC B-1, B-
2, and B-1/B-2 visa holders to renew their visas on a less frequent
basis in the future, saving covered aliens $430.50 per visa renewal
foregone and a total of $3.6 billion (undiscounted) over the period of
analysis according to this rule's decrease in visa issuances under
CBP's primary estimation method (see Table 2).
Through its continual traveler screening and advance
inadmissibility determinations, this rule will strengthen national
security and facilitate legitimate travel, thereby providing important
benefits to the public. Air and sea carriers and CBP will also enjoy
benefits from EVUS's advance review of passengers to help avoid
problems at ports of entry that could impose burdens on carriers. Each
carrier will save an estimated $1,500 in avoided return trip costs per
unsuccessful EVUS enrollment.\17\ Such savings will total $3.1 million
(undiscounted) over the entire period of analysis based on the number
of unsuccessful EVUS enrollments under CBP's primary estimation method
(see Table 1). With an estimated 80 carriers initially affected by this
rule, these benefits will average nearly $39,000 per carrier. For each
inadmissible covered alien arrival avoided, CBP will save $170.94 in
avoided processing and inspection time costs. Based on these processing
and inspection time cost savings and the total number of potentially
inadmissible covered alien arrivals avoided through the EVUS enrollment
process, under CBP's primary estimation method (see Table 1--
Unsuccessful EVUS Requests), CBP will save between $325,000 and
$392,000 (undiscounted) with this rule from FY 2017 to FY 2026. Note
that these are not budgetary savings, they are savings that CBP will
dedicate to other agency mission areas, such as improving security and
expediting the processing of other travelers.
---------------------------------------------------------------------------
\17\ This cost includes the airfare and any lodging and meal
expenses incurred while the alien awaits transportation out of the
United States. See 80 FR 32267 (June 8, 2015).
---------------------------------------------------------------------------
Altogether, the undiscounted monetized benefit of this rule will
total $3.7 billion under CBP's primary estimation method. As Table 4
shows, the total benefit of this rule under this method will measure
$2.3 billion to $3.0 billion in present value terms over the period of
analysis and between $299.6 million and $336.3 million when annualized
(using 7 and 3 percent discount rates, respectively). EVUS will also
strengthen national security and facilitate legitimate travel. These
benefits vary according to the projection method and discount rate
applied.
Table 4--Total Monetized Present Value and Annualized Benefits of Rule, FY 2017-FY 2026
[In millions; 2017 U.S. dollars]
----------------------------------------------------------------------------------------------------------------
3% Discount rate 7% Discount rate
---------------------------------------------------------------
Present value Annualized Present value Annualized
benefit benefit benefit benefit
----------------------------------------------------------------------------------------------------------------
Method 1 (Primary Estimate)--With Rule.......... $2,955.1 $336.3 $2,251.5 $299.6
Method 2--With Rule............................. 1,749.3 199.1 1,305.8 173.8
Method 3--With Rule............................. 4,254.3 484.2 3,260.4 433.8
----------------------------------------------------------------------------------------------------------------
Note: The estimates in this table are contingent upon CBP's expectations of the population of covered aliens
initially affected by this rule and the discount rates applied.
[[Page 72490]]
5. Net Impact of Rule
Table 5 summarizes the monetized and non-monetized costs and
benefits of the EVUS rule, covered aliens, the public, air and sea
carriers, and CBP. As shown, the total monetized present value net
benefit of this rule over ten years is $981.8 million to $1.4 billion,
while its annualized net benefit totals $130.6 million to $163.2
million according to CBP's primary estimation method (using 7 and 3
percent discount rates, respectively). In addition to these benefits,
the rule will strengthen national security and facilitate legitimate
travel through continual traveler screening and advance inadmissibility
determinations. These impacts vary according to the projection method
and discount rate applied.
Table 5--Net Benefit of Rule, FY 2017-FY 2026
[Monetized values in millions; 2017 U.S. dollars]
----------------------------------------------------------------------------------------------------------------
3% Discount rate 7% Discount rate
-------------------------------------------------------------------------------
Present value Annualized Present value Annualized
----------------------------------------------------------------------------------------------------------------
Method 1 (Primary Estimate)--
With Rule:
Total Cost:
Monetized................... $1,520.9.......... $173.1............ $1,269.7.......... $168.9.
Non-Monetized, but
Quantified.
Non-Monetized and Non-
Quantified.
Total Benefit:
Monetized................... $2,955.1.......... $336.3............ $2,251.5.......... $299.6.
Non-Monetized, but
Quantified.
----------------------------------------------------------------------------------------------------------------
Non-Monetized and Non- Strengthened national security and
Quantified. legitimate travel facilitation
Strengthened national security and
legitimate travel facilitation.
----------------------------------------------------------------------------------------------------------------
Total Net Benefit:
Monetized................... $1,434.2.......... $163.2............ $981.8............ $130.6.
Non-Monetized, but
Quantified.
----------------------------------------------------------------------------------------------------------------
Non-Monetized and Non- Strengthened national security and
Quantified. legitimate travel facilitation
Strengthened national security and
legitimate travel facilitation.
----------------------------------------------------------------------------------------------------------------
Method 2--With Rule:
Total Cost:
Monetized................... $1,401.7.......... $159.5............ $1,176.1.......... $156.5.
Non-Monetized, but
Quantified.
Non-Monetized and Non-
Quantified.
Total Benefit:
Monetized................... $1,749.3.......... $199.1............ $1,305.8.......... $173.8.
Non-Monetized, but
Quantified.
----------------------------------------------------------------------------------------------------------------
Non-Monetized and Non- Strengthened national security and
Quantified. legitimate travel facilitation
Strengthened national security and
legitimate travel facilitation.
----------------------------------------------------------------------------------------------------------------
Total Net Benefit:
Monetized................... $347.6............ $39.6............. $129.7............ $17.3.
Non-Monetized, but
Quantified.
----------------------------------------------------------------------------------------------------------------
Non-Monetized and Non- Strengthened national security and
Quantified. legitimate travel facilitation
Strengthened national security and
legitimate travel facilitation.
----------------------------------------------------------------------------------------------------------------
Method 3--With Rule:
Total Cost:
Monetized................... $1,665.0.......... $189.5............ $1,383.0.......... $184.0.
Non-Monetized, but
Quantified.
Non-Monetized and Non-
Quantified.
Total Benefit:
Monetized................... $4,254.3.......... $484.2............ $3,260.4.......... $433.8.
Non-Monetized, but
Quantified.
----------------------------------------------------------------------------------------------------------------
Non-Monetized and Non- Strengthened national security and
Quantified. legitimate travel facilitation
Strengthened national security and
legitimate travel facilitation.
----------------------------------------------------------------------------------------------------------------
Total Net Benefit:
Monetized................... $2,589.3.......... $294.7............ $1,877.4.......... $249.8.
Non-Monetized, but
Quantified.
----------------------------------------------------------------------------------------------------------------
Non-Monetized............... Strengthened national security and
and Non-Quantified.......... legitimate travel facilitation
Strengthened national security and
legitimate travel facilitation.
----------------------------------------------------------------------------------------------------------------
Notes: The estimates in this table are contingent upon CBP's expectations of the population of covered aliens
initially affected by this rule and the discount rates applied. Estimates may not sum to total due to
rounding.
[[Page 72491]]
F. 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, DHS has determined that this final rule does not
have sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.
G. Executive Order 12988 Civil Justice Reform
This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of Executive Order 12988. Executive Order 12988 requires
agencies to conduct reviews on civil justice and litigation impact
issues before proposing legislation or issuing proposed regulations.
The order requires agencies to exert reasonable efforts to ensure that
the regulation identifies clearly preemptive effects, effects on
existing federal laws or regulations, identifies any retroactive
effects of the regulation, and other matters. DHS has determined that
this regulation meets the requirements of Executive Order 12988 because
it does not involve retroactive effects, preemptive effects, or the
other matters addressed in the Executive Order.
H. Paperwork Reduction Act
The collection of information in this document was submitted to OMB
for review in accordance with the requirements of the Paperwork
Reduction Act (44 U.S.C. 3507). Approval and assigned OMB control
number are pending. An agency may not conduct or sponsor, and a person
is not required to respond to, a collection of information unless it
displays a valid control number assigned by OMB. These regulations
provide for a new collection of information for biographic and other
information from nonimmigrant aliens who hold a passport issued by an
identified country containing a U.S. nonimmigrant visa of a designated
category. Nonimmigrant aliens subject to this regulation will be
required to periodically enroll in EVUS and obtain a valid notification
of compliance prior to travel to the United States. DHS will use the
information collected through EVUS to identify subjects of potential
interest before they depart for the United States, thereby increasing
security and reducing traveler delays upon arrival at U.S. ports of
entry. EVUS will aid DHS in facilitating legitimate travel while also
ensuring national security.
The proposed information collection requirements will result in the
following estimated burden hours:
Estimated Number of Annual Respondents: 3,595,904.
Estimated Number of Annual Responses per Respondent: 1.
Estimated Total Annual Responses: 3,595,904.
Estimated Time per Response: 25 minutes (0.417 hours).
Estimated Total Annual Burden Hours: 1,499,492.
I. Privacy
DHS will ensure that all Privacy Act requirements and policies are
adhered to in the implementation of this rule and has issued a Privacy
Impact Assessment that fully outlines processes that will ensure
compliance with Privacy Act protections. This Privacy Impact Assessment
is posted on the DHS Web site at https://www.dhs.gov/publication/dhscbppia-033-electronic-visa-update-system-evus. DHS has also prepared
a System of Records Notice (SORN) which was published in the Federal
Register on September 1, 2016 (81 FR 60371).
List of Subjects
8 CFR Part 212
Administrative practice and procedure, Aliens, Immigration,
Passports and visas, Reporting and recordkeeping requirements.
8 CFR Part 214
Administrative practice and procedure, Aliens, Cultural exchange
programs, Employment, Foreign officials, Health professions, Reporting
and recordkeeping requirements, Students.
8 CFR part 215
Administrative practice and procedure, Aliens, Travel restrictions.
8 CFR Part 273
Administrative practice and procedure, Air carriers, Aliens,
Maritime carriers, Penalties.
Amendments to the Regulations
For the reasons stated in the preamble, we are amending 8 CFR parts
212, 214, 215, and 273 as set forth below.
PART 212--DOCUMENTARY REQUIREMENTS: NONIMMIGRANTS; WAIVERS;
ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE
0
1. The general authority citation for part 212 is revised to read as
follows:
Authority: 6 U.S.C. 202, 236; 8 U.S.C. 1101 and note, 1102,
1103, 1182 and note, 1184, 1187, 1223, 1225, 1226, 1227, 1255, 1359;
8 U.S.C. 1185 note (section 7209 of Pub. L. 108-458); 8 CFR part 2.
* * * * *
Sec. 212.1 [Amended]
0
2. In Sec. 212.1, in the introductory text, after the word ``visa''
add the words ``that meets the requirements of part 215, subpart B, of
this chapter, if applicable,'' and remove the words ``, valid for the
period set forth in section 212(a)(26) of the Act,'' after the word
``passport''.
PART 214--NONIMMIGRANT CLASSES
0
3. The authority citation for part 214 is revised to read as follows:
Authority: 6 U.S.C. 202, 236; 8 U.S.C. 1101, 1102, 1103, 1182,
1184, 1186a, 1187, 1221, 1281, 1282, 1301-1305 and 1372; sec. 643,
Pub. L. 104-208, 110 Stat. 3009-708; Public Law 106-386, 114 Stat.
1477-1480; section 141 of the Compacts of Free Association with the
Federated States of Micronesia and the Republic of the Marshall
Islands, and with the Government of Palau, 48 U.S.C. 1901 note, and
1931 note, respectively; 48 U.S.C. 1806; 8 CFR part 2.
Sec. 214.1 [Amended]
0
4. In Sec. 214.1, paragraph (a)(3)(i), third sentence, after the words
``or of this chapter'' add the words ``, as well as compliance with
part 215, subpart B, of this chapter, if applicable''.
PART 215--CONTROLS OF ALIENS DEPARTING FROM THE UNITED STATES;
ELECTRONIC VISA UPDATE SYSTEM
0
5. The authority citation for part 215 is revised to read as follows:
Authority: 6 U.S.C. 202(4), 236; 8 U.S.C. 1101, 1103, 1104,
1184, 1185 (pursuant to Executive Order 13323 (Dec. 30, 2003)),
1365a note, 1379, 1731-32; and 8 CFR part 2.
0
6. Revise the heading for part 215 to read as set forth above.
Sec. Sec. 215.1 through 215.9 [Designated as Subpart A]
0
7. Designate Sec. Sec. 215.1 through 215.9 as subpart A and add a
heading for subpart A to read as follows:
Subpart A--Controls of Aliens Departing from the United States
Sec. 215.1 [Amended]
0
8. In Sec. 215.1, amend the introductory text by removing the word
``part'' and adding in its place the word ``subpart''.
0
9. Add subpart B to read as follows:
[[Page 72492]]
Subpart B--Electronic Visa Update System
Sec.
215.21 Purpose.
215.22 Applicability.
215.23 Definitions.
215.24 Electronic Visa Update System (EVUS) requirements.
Sec. 215.21 Purpose.
The purpose of this subpart is to establish an electronic visa
update system for nonimmigrant aliens who hold a passport issued by an
identified country containing a U.S. nonimmigrant visa of a designated
category.
Sec. 215.22 Applicability.
This subpart is applicable to nonimmigrant aliens who hold a
passport issued by an identified country containing a U.S. nonimmigrant
visa of a designated category. The Secretary, in the Secretary's
discretion and in consultation with the Secretary of State, may
identify countries and designate nonimmigrant visa categories for
purposes of this subpart. Notice of the identified countries and
designated nonimmigrant visa categories will be published in the
Federal Register.
Sec. 215.23 Definitions.
The following definitions apply for purposes of this subpart.
(a) Covered alien. A covered alien is a nonimmigrant alien who
holds a passport issued by an EVUS country (as defined in paragraph (c)
of this section) containing a U.S. nonimmigrant visa of a designated
category.
(b) Electronic Visa Update System (EVUS). The Electronic Visa
Update System (EVUS) is the electronic system used by a covered alien
to provide required information to DHS after the receipt of his or her
visa of a designated category.
(c) EVUS country. An EVUS country is a country that has been
identified for inclusion in EVUS, through publication of a notice in
the Federal Register, by the Secretary after consultation with the
Secretary of State.
(d) Notification of compliance. A notification of compliance is a
verification from CBP that a covered alien has successfully enrolled in
EVUS. A notification of compliance is a positive determination that an
alien's visa is:
(1) Not automatically provisionally revoked pursuant to 22 CFR
41.122(b)(3); and
(2) Is considered valid for travel to the United States as of the
time of notification.
Sec. 215.24 Electronic Visa Update System (EVUS) requirements.
(a) Enrollment required. Each covered alien must initially enroll
in EVUS, in accordance with paragraph (c)(1) of this section, by
providing the information set forth in paragraph (d) of this section
electronically through EVUS. Each covered alien who intends to travel
to the United States must have a valid notification of compliance as
set forth in paragraph (c)(2) of this section. Upon each successful
enrollment or re-enrollment, CBP will issue a notification of
compliance.
(b) Validity period of notification of compliance--(1) General
validity period. A notification of compliance will generally be valid
for a period of two years from the date the notification of compliance
is issued, except as provided in paragraph (b)(2) or (3) of this
section.
(2) Exception. If the nonimmigrant alien's passport or nonimmigrant
visa will expire in less than two years from the date the notification
of compliance is issued, the notification will be valid until the date
of expiration of the passport or nonimmigrant visa, whichever is
sooner.
(3) Change in validity period of notification of compliance. The
Secretary, in consultation with the Secretary of State, may increase or
decrease the notification of compliance validity period otherwise
authorized by paragraph (b)(1) of this section for an EVUS country. Any
such increase or decrease would apply to subsequently issued
notifications of compliance. Any changes to the validity period will be
done through rulemaking. The EVUS Web site will be updated to reflect
the specific duration of notification of compliance validity periods
for each EVUS country.
(4) Relation to nonimmigrant visa validity. A notification of
compliance is not valid unless the alien's nonimmigrant visa also is
valid.
(c) Schedule for EVUS enrollment--(1) Initial EVUS enrollment--(i)
Visas received prior to November 29, 2016. Each covered alien who
received his or her nonimmigrant visa of a designated category prior to
November 29, 2016 must initially enroll in EVUS by December 14, 2016,
unless the covered alien intends to travel to the United States before
that date, in which case the requirements for EVUS enrollment outlined
in paragraph (c)(2) of this section apply.
(ii) Visas received on or after November 29, 2016. Each covered
alien who received his or her nonimmigrant visa of a designated
category on or after November 29, 2016 must initially enroll in EVUS
upon receipt of such visa.
(2) EVUS re-enrollment requirements prior to travel to the United
States--(i) Individuals arriving at air or sea ports of entry. Each
covered alien who intends to travel by air or sea to the United States
on a nonimmigrant visa of a designated category must have a
notification of compliance that is valid, as described in paragraph (b)
of this section, prior to boarding a carrier destined for travel to the
United States through the date when the covered alien will arrive at a
U.S. port of entry.
(ii) Individuals arriving at land ports of entry. Each covered
alien who intends to travel by land to the United States on a
nonimmigrant visa of a designated category must have a notification of
compliance that is valid, as described in paragraph (b) of this
section, through the date of application for admission to the United
States.
(d) Required EVUS enrollment elements. DHS will collect such
information from covered aliens as DHS deems necessary in its
discretion, after consultation with the Department of State. The
required information will be reflected in the EVUS enrollment
questions.
(e) EVUS re-enrollment required. Each covered alien must re-enroll
in EVUS and obtain a new notification of compliance from CBP if any of
the following occurs:
(1) The alien is issued a new passport or new nonimmigrant visa of
a designated category;
(2) The alien changes his or her name;
(3) The alien changes his or her gender;
(4) There is any change to the alien's country of citizenship or
nationality, including becoming a dual national; or
(5) The circumstances underlying the alien's previous responses to
any of the EVUS enrollment questions requiring a ``yes'' or ``no''
response (eligibility questions) have changed.
(f) Limitation. A notification of compliance is not a determination
that the covered alien is admissible to the United States. A
determination of admissibility is made after an applicant for admission
is inspected by a CBP officer at a U.S. port of entry.
(g) Noncompliance, expiration of notification of compliance, and
change in EVUS status resulting in rescission of notification of
compliance--(1) Initial EVUS enrollment. Failure to initially enroll in
EVUS in accordance with paragraph (c)(1) of this section will result in
the automatic provisional revocation of the covered alien's
nonimmigrant visa pursuant to 22 CFR 41.122(b)(3), pending enrollment.
[[Page 72493]]
(2) Expiration of notification of compliance. Upon expiration of a
notification of compliance, as described in paragraph (b) of this
section, the covered alien's nonimmigrant visa will be automatically
provisionally revoked pursuant to 22 CFR 41.122(b)(3), pending re-
enrollment. To prevent the automatic provisional revocation of his or
her nonimmigrant visa due to the expiration of the notification of
compliance, each covered alien must re-enroll in EVUS prior to such
expiration.
(3) Unsuccessful EVUS enrollment. If a covered alien's EVUS
enrollment or re-enrollment is unsuccessful, his or her nonimmigrant
visa will be automatically provisionally revoked pursuant to 22 CFR
41.122(b)(3), pending successful enrollment or re-enrollment.
(4) Change in EVUS status after receipt of a notification of
compliance. In the event that irreconcilable errors are discovered
after the issuance of a notification of compliance, or other
circumstances occur including but not limited to a change in the
validity period of the notification of compliance as provided in
paragraph (b) of this section, CBP may rescind the notification of
compliance. If a covered alien's notification of compliance is
rescinded, his or her nonimmigrant visa will be automatically
provisionally revoked pursuant to 22 CFR 41.122(b)(3), pending
successful enrollment. CBP will attempt to provide notification of a
change in EVUS status to the covered alien through the provided email
address.
(h) Reversal of an automatically provisionally revoked visa and
steps to address an unsuccessful EVUS enrollment or rescission of a
notification of compliance--(1) Reversal of an automatically
provisionally revoked visa. If a covered alien's nonimmigrant visa has
been automatically provisionally revoked as described in paragraph
(g)(1) or (2) of this section, the revocation of the alien's visa will
be automatically reversed, following compliance with EVUS, if the visa
remains valid and was not also revoked on other grounds. After a
reversal of the revocation the visa will immediately resume the
validity provided for on its face, pursuant to 22 CFR 41.122(b)(3),
after the alien enrolls in EVUS and receives a notification of
compliance.
(2) Unsuccessful EVUS enrollment. If a covered alien's EVUS
enrollment is unsuccessful per paragraph (g)(3) of this section, the
covered alien may re-attempt enrollment or contact CBP.
(3) Rescission of notification of compliance. If a covered alien's
nonimmigrant visa has been automatically provisionally revoked as
described in paragraph (g)(4) of this section, the covered alien may
re-attempt enrollment or contact CBP.
PART 273--CARRIER RESPONSIBILITIES AT FOREIGN PORTS OF EMBARKATION;
REDUCING, REFUNDING, OR WAIVING FINES UNDER SECTION 273 OF THE ACT
0
10. The authority citation for part 273 continues to read as follows:
Authority: 8 U.S.C. 1103, 1323; 8 CFR part 2.
Sec. 273.3 [Amended]
0
11. Amend Sec. 273.3 as follows:
0
a. In paragraph (b)(1)(ii), remove the word ``and'';
0
b. In paragraph (b)(1)(iii), remove the period at the end of the
paragraph and add in its place ``; and''; and
0
c. Add paragraphs (b)(1)(iv) and (b)(4).
The additions read as follows:
Sec. 273.3 Screening procedures.
* * * * *
(b) * * *
(1) * * *
(iv) Passengers described in part 215, subpart B, of this chapter
have complied with EVUS requirements as appropriate.
* * * * *
(4) Transmitting visa numbers. Carriers must transmit to U.S.
Customs and Border Protection the visa number for any passenger who
requires a visa. The visa number must be transmitted using the Advance
Passenger Information System, consistent with the procedural
requirements for transmission of electronic passenger manifests in 19
CFR parts 4 (vessel) and 122 (aircraft).
Jeh Charles Johnson,
Secretary.
[FR Doc. 2016-25321 Filed 10-19-16; 8:45 am]
BILLING CODE 9111-14-P