[Federal Register Volume 81, Number 235 (Wednesday, December 7, 2016)]
[Rules and Regulations]
[Pages 88101-88103]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-28518]


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DEPARTMENT OF STATE

22 CFR Part 41

RIN 1400-AD96
[Public Notice: 9638]


Visas: Classification of Immediate Family Members as A, C-3, G, 
and NATO Nonimmigrants

AGENCY: State Department.

ACTION: Final rule.

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SUMMARY: This rule amends the definition of immediate family for 
purposes of A, C-3, G, and NATO visa classifications in two ways: It 
revises the eligibility requirements for unmarried adult sons and 
daughters age 21 or older for these visa classifications, and clarifies 
for purposes of G-4 visa classification that the international 
organization employing the principal alien must recognize an individual 
as immediate family to be eligible for derivative U.S. visa status. 
Furthermore, this rule permits qualified immediate family members of A-
1, A-2, G-1, G-2, G-3, and G-4 nonimmigrants to be independently 
classified as NATO-1, NATO-2, NATO-3, NATO-4, NATO-5, and NATO-6.

DATES: This final rule is effective on December 7, 2016.

FOR FURTHER INFORMATION CONTACT: Paul-Anthony L. Magadia, U.S. 
Department of State, Office of Legislation and Regulations, CA/VO/L/R, 
600 19th Street NW., SA-17, Room 12-526B, Washington, DC 20522, 202-
485-7641 or [email protected].

SUPPLEMENTARY INFORMATION: Prior to this amendment, an unmarried adult 
son or daughter who is not part of any other household and resides 
regularly in the household of the principal alien must be classified in 
A or G visa classifications, even if otherwise eligible for another 
nonimmigrant classification and regardless of age or the intention of 
the sending government or international organization. Yet for purposes 
of privileges and immunities, the Department of State accepts only 
unmarried children under the age of 21, or unmarried sons and daughters 
under the age of 23 and in full-time attendance as students at post-
secondary educational institutions, as dependents. Similarly, under 8 
CFR 214.2(a)(2) and (g)(2) for employment authorization purposes, 
Department of Homeland Security (DHS) regulations generally only 
consider unmarried children under the age of 21, or unmarried sons and 
daughters under the age of 23 and in full-time attendance as students 
at post-secondary educational institutions, to be dependents. (Under 
certain circumstances, DHS, under its regulations, may also recognize 
as dependents sons and daughters up to the age of 25 or of any age if 
physically or mentally challenged.) In practice, requiring A or G 
classification for sons and daughters above these age limits precludes 
them from obtaining a nonimmigrant classification that would enable 
them to accept employment in the United States.
    This rule narrows the definition of immediate family in the A, C-3 
(aliens in transit under section 212(d)(8) of the Immigration and 
Nationality Act, 8 U.S.C. 1182(d)(8)), G, and relevant NATO 
nonimmigrant visa classifications so that only unmarried sons and 
daughters residing with the principal who are under the age of 21, or 
under the age of 23 and in full-time attendance as students at post-
secondary educational institutions, will continue to be considered 
immediate family. Any other unmarried son or daughter residing with the 
principal will only qualify if he or she meets the same criteria the 
rule imposes on other family members. In particular, he or she must be 
recognized as an ``immediate family member'' by the sending government 
or international organization for purposes of eligibility for rights 
and benefits and also is individually authorized by the Department. An 
adult son or daughter

[[Page 88102]]

who is no longer recognized as an immediate family member would have to 
apply, and be eligible for, another visa classification or seek a 
change of status to another nonimmigrant status. This rule also amends 
22 CFR 41.21(a)(3)(iii)(C) to clarify that for purposes of G-4 visa 
classification, the employing international organization must recognize 
individuals as immediate family members, before they may be treated as 
such for U.S. visa purposes, similar to the requirement that a sending 
government must recognize an individual as immediate family.
    Finally, prior to this amendment, 22 CFR 41.22(b) and 41.24(b) 
required that an alien entitled to classification as an A-1, A-2, or G-
1 through G-4 nonimmigrant must be classified as such, even those who 
would otherwise be eligible for another nonimmigrant classification. 
This rule allows immediate family members of A-1s, A-2s, and G-1s 
through G-4s to be instead independently classified as a principal in 
NATO-1 through NATO-6 visa classifications, but not other nonimmigrant 
classifications.

Regulatory Findings

Administrative Procedure Act

    The Department of State is of the opinion that regulating visa 
categories involves a foreign affairs function of the United States 
Government and that rules implementing this function are exempt from 
sections 553 (rulemaking) and 554 (adjudications) of the Administrative 
Procedure Act. Since the Department is of the opinion that this rule is 
exempt from 5 U.S.C. 553, it is the view of the Department that the 
provisions of Section 553(d) do not apply. Therefore, this rule is 
effective upon publication.

Regulatory Flexibility Act/Executive Order 13272: Small Business

    Because this final rule is exempt from notice and comment 
rulemaking under 5 U.S.C. 553, it is exempt from the regulatory 
flexibility analysis requirements set forth by the Regulatory 
Flexibility Act (5 U.S.C. 603 and 604). Nonetheless, consistent with 
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.

Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995, 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 does 
not require the Department to prepare a statement because it will not 
result in any such expenditure, nor will it significantly or uniquely 
affect small governments. This rule involves visas, which involves 
individuals, and does not affect, state, local, or tribal governments, 
or businesses.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined in 5 U.S.C. 804, for 
purposes of congressional review of agency rulemaking under the Small 
Business Regulatory Enforcement Fairness Act of 1996. This rule will 
not result in an annual effect on the economy of $100 million or more; 
a major increase in costs or prices; or adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
United States-based companies to compete with foreign-based companies 
in domestic and import markets. This rule involves visas, which 
involves individuals, and does not affect, state, local, or tribal 
governments, or businesses.

Executive Orders 12866 and 13563

    Executive Orders 13563 and 12866 direct agencies to assess 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, distributed impacts, and equity). These Executive Orders 
stress the importance of quantifying both costs and benefits, of 
reducing costs, of harmonizing rules, and of promoting flexibility. The 
Department has examined this rule in light of Executive Order 13563, 
and has determined that the rulemaking 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 12988: Civil Justice Reform

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

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 Section 5 of Executive Order 13175 do 
not apply to this rulemaking.

Paperwork Reduction Act

    This rule does not impose or revise any reporting or recordkeeping 
requirements subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 
35.

List of Subjects in 22 CFR Part 41

    Aliens, Immigration, Nonimmigrant visas.

    For the reasons stated in the preamble, 22 CFR part 41 is amended 
as follows:

PART 41--[AMENDED]

0
1. The authority citation for part 41 continues 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. Section 41.21 is amended by revising paragraph (a)(3) to read as 
follows:


Sec.  41.21   Foreign Officials--General.

    (a) * * *
    (3) Immediate family, as used in INA 101(a)(15)(A), 101(a)(15)(G), 
and 212(d)(8), and in classification under the NATO visa symbols, 
means:
    (i) The spouse who resides regularly in the household of the 
principal alien and is not a member of some other household;
    (ii) Unmarried sons and daughters, whether by blood or adoption, 
who reside regularly in the household of the principal alien and who 
are not members of some other household, and provided that such 
unmarried sons and daughters are:
    (A) Under the age of 21, or
    (B) Under the age of 23 and in full-time attendance as students at 
post-secondary educational institutions; and

[[Page 88103]]

    (iii) Other individuals who:
    (A) Reside regularly in the household of the principal alien;
    (B) Are not members of some other household;
    (C) Are recognized as dependents of the principal alien by the 
sending government or international organization, as demonstrated by 
eligibility for rights and benefits, such as the issuance of a 
diplomatic or official passport, or travel or other allowances; and
    (D) Are individually authorized by the Department.
* * * * *

0
3. Section 41.22 is amended by revising paragraph (b) to read as 
follows:


Sec.  41.22   Officials of foreign governments.

* * * * *
    (b) Classification under INA section 101(a)(15)(A). An alien 
entitled to classification under INA section 101(a)(15)(A) shall be 
classified under this section even if eligible for another nonimmigrant 
classification. An exception may be made where an immediate family 
member is classifiable as A-1 or A-2 under paragraph (a)(2) of this 
section is also independently classifiable as a principal under INA 
section 101(a)(15)(G)(i), (ii), (iii), (iv) or in NATO-1 through NATO-6 
classification.
* * * * *

0
4. Section 41.24 is amended by revising paragraph (b)(4) to read as 
follows:


Sec.  41.24   International organization aliens.

* * * * *
    (b) * * *
    (4) An alien not classifiable under INA section 101(a)(15)(A) or in 
NATO-1 through NATO-6 classification but entitled to classification 
under INA section 101(a)(15)(G) shall be classified under section 
101(a)(15)(G), even if also eligible for another nonimmigrant 
classification. An alien classified under INA section 101(a)(15)(G) as 
an immediate family member of a principal alien classifiable G-1, G-2, 
G-3 or G-4, may continue to be so classified even if he or she obtains 
employment subsequent to his or her initial entry into the United 
States that would allow classification under INA section 101(a)(15)(A). 
Such alien shall not be classified in a category other than A or G, 
even if also eligible for another nonimmigrant classification.
* * * * *

Michele Thoren Bond,
Assistant Secretary for Consular Affairs, Department of State.
[FR Doc. 2016-28518 Filed 12-6-16; 8:45 am]
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