[Federal Register Volume 84, Number 77 (Monday, April 22, 2019)]
[Rules and Regulations]
[Pages 16610-16613]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-08061]


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DEPARTMENT OF STATE

22 CFR Parts 41 and 42

[Public Notice 10481]
RIN 1400-AE64


Refusal Procedures for Visas

AGENCY: Department of State.

ACTION: Final rule.

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SUMMARY: This rule is largely technical in nature and conforms a narrow 
aspect of the Department's visa regulations to the law. The current 
regulation requires consular officers either to grant or deny every 
visa application; however, the law requires consular officers to take a 
different action, i.e., discontinue granting visas, when a country has 
been sanctioned for denying or delaying accepting one or more of its 
nationals subject to a final order of removal from the United States. 
This rule will modify the current regulation to reflect this option for 
consular officers to discontinue granting visas to individuals in 
sanctioned countries.

DATES: This rule is effective on April 22, 2019.

FOR FURTHER INFORMATION CONTACT: Taylor Beaumont, Acting Chief, 
Legislation and Regulations Division, Office of Visa Services, Bureau 
of Consular Affairs, Department of State, 600 19th St. NW, Washington, 
DC 20006, (202) 485-8910, [email protected].

SUPPLEMENTARY INFORMATION: 

Why is the Department promulgating this rule?

    The Department of State is promulgating this rule to provide 
guidance to consular officers implementing section 243(d) of the 
Immigration and Nationality Act, as amended, codified at 8 U.S.C. 
1253(d) (hereinafter INA 243(d)), which is a tool for the U.S. 
government to use to stop the growth of an alien population in the 
United States that the U.S. government is having difficulty removing, 
due to a lack of cooperation by the country of nationality. At the same 
time compelling foreign governments to cooperate on removing from the 
United States aliens subject to final orders of removal is an important 
U.S. government objective. This rule makes clear that discontinuation 
of visa granting is an acceptable alternative to issuing or refusing a 
properly executed visa application, and sets out procedures for 
discontinuation of visa issuance when INA 243(d) applies.
    Section 243(d) of the INA provides that the Secretary of State--
following notification from the Secretary of Homeland Security that the 
government of a foreign country has denied or unreasonably delayed 
accepting an alien who is the citizen, subject, national, or resident 
of that country and is subject to a final order of removal from the 
United States--shall order consular officers in that foreign country to 
``discontinue granting'' immigrant visas, nonimmigrant visas, or both 
to citizens, subjects, nationals, or residents in that country. This 
provision initially existed in Section 243(g) of the INA, but was 
limited to immigrant visas. In 1996, Congress re-designated the 
provision as Section 243(d) and added discontinuation of the granting 
of nonimmigrant visas by U.S. consular officers in the country as a 
potential additional sanction against a country that denies or 
unreasonably delays accepting a covered individual. The Secretary of 
State imposes such visa sanctions by issuing an order to consular 
officers that describes the category or categories of visas and 
applicants subject to discontinuation of visa granting; the order can 
include escalation measures if initial sanctions prove ineffective at 
encouraging the foreign government's cooperation on removals. For 
example, the Secretary could order consular officers to discontinue 
granting B-1 and B-2 visas for personal travel by ministers of a 
foreign government, with an escalation measure that requires 
discontinuation of F-category student visas for members of the same 
foreign officials' families after 6 months, if the country remains 
uncooperative on removals.
    Current regulations describing a consular officer's authority to 
refuse visas state that the officer must issue or refuse a visa when a 
``properly completed and executed'' visa application is submitted (see 
22 CFR 41.121(a) and 22 CFR 42.81(a) (relating to nonimmigrant and 
immigrant visas, respectively)), but make no reference to a consular 
officer ``discontinuing granting'' a visa when the Secretary of State 
issues an INA 243(d) order. INA 243(d) sanctions are referenced only in 
22 CFR 42.71(a), prohibiting a consular officer from issuing an 
immigrant visa when barred by sanctions under INA 243(d), unless the 
sanction has been waived by DHS. This rule will better inform the 
public of the third option established by statute, by inserting 
language in 22 CFR 41.121(a) and 22 CFR 42.81(a) indicating that the 
consular officer may discontinue granting (i.e., suspend issuance of) a 
visa, as an alternative to issuance or refusal, in the manner described 
in the two new sections.
    Two new sections, 22 CFR 41.123 and 22 CFR 42.84, (relating to 
nonimmigrant and immigrant visas, respectively), describe procedures 
for consular officers who discontinue granting visas to applicants who 
fall within the scope of an INA 243(d) order. These sections explain, 
among other things, that beginning on the effective date of the 
Secretary's INA 243(d) order, no visas that fall within the scope of 
the order may be issued, but, in cases where an alien has applied for a 
visa that falls within that scope of the order and the alien is found 
to be ineligible for such visa, the application may be refused. The new 
sections also explain that discontinuance of granting may not be 
waived, but once the sanction under INA 243(d) is lifted, consular 
officers within the affected post must complete adjudication of the 
visa application, consistent with regulations and Department guidance, 
such as the Foreign Affairs Manual (FAM).

[[Page 16611]]

Regulatory Findings

Administrative Procedure Act

    The Department is publishing this rule as a final rule because it 
is exempt from notice and comment under the foreign affairs exemption 
of the Administrative Procedure Act (APA), 5 U.S.C. 553(a). In light of 
the impact sanctions have on bilateral relations, it is clear this rule 
``implicates matters of diplomacy directly.'' City of N.Y. v. Permanent 
Mission of India to the U.N., 618 F.3d 172, 202 (2d Cir. 2010).
    In addition to providing a tool for the U.S. government to stem the 
growth of populations of an alien population in the United States that 
the U.S. government is having difficulty removing, due to a lack of 
cooperation by the country of nationality, INA 243(d) creates a tool 
for use in U.S. diplomatic efforts: A means of prompting foreign 
governments to acquiesce in a request by the United States to take back 
the foreign government's nationals by discontinuing grants of visas to 
that government's nationals. Indeed, Section 243(d) is a key component 
of U.S. diplomatic efforts. The provision comes into play only after 
notification to the Secretary of State that the Secretary of Homeland 
Security has exhausted all appropriate efforts for a foreign government 
to accept its nationals who have been ordered removed from the United 
States and the foreign government has refused to make any significant 
progress on the issue. It functions by lending weight to the efforts of 
the Secretary of Homeland Security and incentivizing a recalcitrant 
government to retract its refusal. And it ceases to operate when the 
Secretary of State is notified that the government at issue has acceded 
to the Secretary of Homeland Security's request. Thus, every exercise 
of Section 243(d) directly implicates actual diplomacy; a regulation 
creating the procedure for using this tool likewise has similar 
consequences. Therefore, this regulation is exempt from 5 U.S.C. 553 of 
the APA because it involves a foreign affairs function of the United 
States.

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. Any economic impact the rule 
may seem to have actually is attributable to the underlying law, INA 
243(d), which this rule directly implements.

Unfunded Mandates Reform Act of 1995

    Section 202 of 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 will not result in any such expenditure, nor 
will it significantly or uniquely affect small governments.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by 5 U.S.C. 804. The 
Department is aware of no monetary effect on the economy that would 
directly result from this rulemaking, nor will there be any increase in 
costs or prices; or any effect 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.

Executive Order 12866/Executive Order 13563

    The Department of State has reviewed this rule to ensure its 
consistency with the regulatory philosophy and principles set forth in 
Executive Order 12866. This rule governs the technical aspects of visa 
procedures required for implementation of INA 243(d), ensuring that 
guidance regarding that statue is clear and consistent across visa 
categories and posts.
    The exercise of authority under INA 243(d), consistent with this 
regulation, would restrict the ability of some visa applicants, 
including potentially large numbers of visa applicants from a given 
country who apply for visas in that country, from obtaining U.S. 
visas--, which could in turn have economic impact on individual 
transactions within the United States associated with the applicant's 
proposed purpose of travel. Consular officers may not discontinue 
granting visas under this regulation for any purpose beyond that 
explicitly authorized already by INA 243(d), which authorizes the 
Secretary of Homeland Security to notify the Secretary of State that a 
country has denied or unreasonably delayed accepting an alien subject 
to a final order of removal, and thereafter requires the Secretary of 
State to issues an order describing the scope of visa sanctions to be 
imposed.
    Historically, the Secretary of State has strategically tailored 
visa sanctions to achieve critical foreign policy objectives, taking 
into account the circumstances of the country or population being 
targeted by the sanctions. There is no set formula, though, notably 
State has never issued a blanket refusal for visas from the country in 
question. For some countries, sanctions begin by targeting officials 
who work in the ministries responsible for accepting the return of that 
country's nationals, with escalation scenarios that target family 
members of those officials and, potentially, officials of other 
ministries, and then other categories of applicants, if initial 
sanctions do not prove effective at encouraging greater cooperation on 
removals by the targeted government. For other countries, sanctions 
could begin more broadly. As provided for in INA 243(d), any country 
that fails to cooperate in the repatriation of its nationals subject to 
final orders of removal from the United States may be subject to 
sanctions, the scope of which will depend on the circumstances at the 
time the sanctions are implemented.
    Since the law was modified to cover nonimmigrant visas in 1996, 318 
visa applicants have been affected, and sanctions have been imposed on 
10 countries: Guyana (2001), The Gambia (2016), Cambodia, Eritrea, 
Guinea, and Sierra Leone (2017); Burma and Laos (2018); and Ghana and 
Pakistan (2019). During this same time period, tens of millions of 
aliens have received nonimmigrant visas including, collectively, 
millions of applicants from the 10 countries affected. Given the scope 
of historic INA 243(d) sanctions, and the scale of nonimmigrant visa 
travel to the United States as a whole, the economic impact of INA 
243(d) visa sanctions to date has been de minimis, but far broader 
sanctions could be imposed to achieve the objectives of INA 243(d). 
Because future application of these sanctions is based on unpredictable 
actions by foreign governments; complex assessments by DHS that cannot 
be pre-determined; and strategic foreign policy-related decisions by 
the Secretary of State, taking into account the circumstances of the 
bilateral relationship at the particular time, the Department is unable 
to estimate any particular future economic impact of INA 243(d) 
sanctions.
    The Office of Management and Budget (OMB) has determined that this 
is a significant regulatory action under Executive Order 12866. As 
such, OMB has reviewed this regulation.

[[Page 16612]]

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. The rule will not have federalism 
implications warranting the application of Executive Orders 12372 and 
13132.

Executive Order 12988: Civil Justice Reform

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

Executive Order 13563: Improving Regulation and Regulatory Review

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

Executive Order 13771--Reducing Regulation and Controlling Regulatory 
Costs

    This rule is not subject to the requirements of Executive Order 
13771, because its likely impact is de minimis.

Paperwork Reduction Act

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

List of Subjects

22 CFR Part 41

    Aliens, Foreign officials, Immigration, Documentation of 
nonimmigrants, Passports and visas.

22 CFR Part 42

    Immigration, Passports and visas.

    For the reasons stated in the preamble, the Department of State 
amends 22 CFR parts 41 and 42 as follows:

PART 41--VISAS: DOCUMENTATION OF NONIMMIGRANTS UNDER THE 
IMMIGRATION AND NATIONALITY ACT, AS AMENDED

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

    Authority: 22 U.S.C. 2651a; 8 U.S.C. 1104, 1201, 1202, 1253; 6 
U.S.C. 236; Public Law 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. In Sec.  41.121, the section heading and paragraph (a) are revised 
to read as follows:


Sec.  41.121  Refusal of nonimmigrant visas.

    (a) Grounds for refusal. Nonimmigrant visa refusals must be based 
on legal grounds, such as one or more provisions of INA 212(a), INA 
212(e), INA 214(b) or (f) or (l) (as added by Section 625 of Pub. L. 
104-208), INA 221(g), INA 222(g), or other applicable law. Certain 
classes of nonimmigrant aliens are exempted from specific provisions of 
INA 212(a) under INA 102 and, upon a basis of reciprocity, under INA 
212(d)(8). When a visa application has been properly completed and 
executed in accordance with the provisions of the INA and the 
implementing regulations, the consular officer must issue the visa, 
refuse the visa, or, pursuant to an outstanding order under INA 243(d), 
discontinue granting the visa.
* * * * *

0
3. Add Sec.  41.123 to read as follows:


Sec.  41.123.  Discontinuance of Granting Nonimmigrant Visa Pursuant to 
INA 243(d).

    (a) Grounds for discontinuance of granting a visa. Consular 
officers in a country subject to an order by the Secretary under INA 
243(d) shall discontinue granting nonimmigrant visas for categories of 
nonimmigrant visas specified in the order of the Secretary (or his or 
her designee), and pursuant to procedures dictated by the Department.
    (b) Discontinuance procedure--(1) Applications refused or 
discontinued only. Starting on the day the Secretary's (or designee's) 
order to discontinue granting visas takes effect (effective date), no 
visas falling within the scope of the order, as described by the order, 
may be issued in the referenced country to an applicant who falls 
within the scope of the order, except as otherwise expressly provided 
in the order or related Department instructions. Beginning on the 
effective date, a consular officer must refuse the visa if the 
individual is not eligible for the visa under INA 212(a), INA 221(g), 
or other applicable law, but if the applicant is otherwise eligible, 
must process the application by discontinuing granting, regardless of 
when the application was filed, if the applicant falls within the scope 
of the order and no exception applies. The application processing fee 
will not be refunded. The requirement to discontinue issuance may not 
be waived, and continues until the sanction is terminated as described 
below.
    (2) Geographic applicability. Visa sanctions under INA 243(d) only 
apply to visa issuance in the country that is sanctioned. If a consular 
officer has a reason to believe that a visa applicant potentially 
subject to INA 243(d) sanctions is applying at a post outside the 
sanctioned country to evade visa sanctions under INA 243(d) (e.g., the 
applicant provides no credible explanation for applying outside the 
country), the consular officer will transfer the case to the consular 
post in the consular district where INA 243(d) sanctions apply, review 
any other applicable Department instructions, and proceed accordingly. 
When cases are transferred to a consular district where INA 243(d) 
sanctions apply, the adjudication will be subject to the 
discontinuation of issuance under the sanctions.
    (c) Termination of sanction. The Department shall notify consular 
officers in an affected country when the sanction under INA 243(d) has 
been lifted. After notification, normal consular operations may resume 
consistent with these regulations and guidance from the Department. 
Once the sanction under INA 243(d) is lifted, no new application 
processing fee is required in cases where issuance has been 
discontinued pursuant to an INA 243(d) order, and consular officers in 
the affected post must adjudicate the visa consistent with regulations 
and Department guidance. Consular officers may require applicants to 
update the visa application forms, must conduct any necessary 
adjudicatory steps, and may re-interview the applicant to determine 
eligibility.

PART 42--VISAS: DOCUMENTATION OF IMMIGRANTS UNDER THE IMMIGRATION 
AND NATIONALITY ACT, AS AMENDED

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

    Authority: 22 U.S.C. 2651a; 8 U.S.C. 1104, 1201, 1202, 1253; 6 
U.S.C. 236; Public Law 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
5. In Sec.  42.81, the section heading and paragraph (a) are revised to 
read as follows:


Sec.  42.81  Procedure in refusing immigrant visas.

    (a) Grounds for refusal. When a visa application has been properly 
completed and executed before a consular officer in accordance with the 
provisions of the INA and the implementing regulations, the consular

[[Page 16613]]

officer must issue the visa, refuse the visa under INA 212(a) or 221(g) 
or other applicable law or, pursuant to an outstanding order under INA 
243(d), discontinue granting the visa.
* * * * *

0
6. Add Sec.  42.84 to read as follows:


Sec.  42.84  Discontinuance of Granting Immigrant Visa Pursuant to INA 
243(d).

    (a) Grounds for discontinuance of granting a visa. Consular 
officers in a country subject to an order by the Secretary under INA 
243(d) shall discontinue granting immigrant visas for categories of 
immigrant visas specified in the order of the Secretary (or his or her 
designee), and pursuant to procedures dictated by the Department.
    (b) Discontinuance procedure--(1) Applications refused or 
discontinued only. Starting on the day the Secretary's (or designee's) 
order to discontinue granting visas takes effect (effective date), no 
visas falling within the scope of the order, as described by the order, 
may be issued in the referenced country to an applicant who falls 
within the scope of the order, except as otherwise expressly provided 
in the order or related Department instructions. Beginning on the 
effective date, a consular officer must refuse the visa if the 
individual is not eligible for the visa under INA 212(a), INA 221(g), 
or other applicable law, but if the applicant is otherwise eligible 
must process the application by discontinuing granting, regardless of 
when the application was filed, if the applicant falls within the scope 
of the order and no exception applies. The application processing fee 
will not be refunded. The requirement to discontinue issuance may not 
be waived, and continues until the sanction is terminated as described 
below. In the case of diversity immigrant selectees applying under INA 
203(c), if the discontinuance of granting has not been lifted by the 
end of the fiscal year, the applicant will not be eligible for a 
diversity visa for that fiscal year, regardless of the status of the 
diversity immigrant visa application at the time 243(d) sanctions were 
imposed.
    (2) Geographic applicability. Visa sanctions under INA 243(d) only 
apply to visa issuance in the country that is sanctioned. If a consular 
officer has a reason to believe that a visa applicant potentially 
subject to INA 243(d) sanctions is applying at a post outside the 
sanctioned country to evade visa sanctions under INA 243(d), (e.g., the 
applicant provides no credible explanation for applying outside the 
country) the consular officer will transfer the case to the consular 
post in the consular district where INA 243(d) sanctions apply, review 
any other applicable Department instructions and proceed accordingly. 
When cases are transferred to a consular district where INA 243(d) 
sanctions apply, the adjudication will be subject to the 
discontinuation of issuance under the sanctions.
    (b) Termination of sanction. The Department shall notify consular 
officers in an affected country the sanction under INA 243(d) has been 
lifted. After notification, normal consular operations may resume 
consistent with these regulations and guidance from the Department. 
Once the sanction under INA 243(d) is lifted, no new application 
processing fees are required in cases where issuance has been 
discontinued pursuant to an INA 243(d) order, and consular officers in 
the affected post must adjudicate the visa application consistent with 
regulations and Department guidance. Consular officers may require 
applicants to update the visa application forms, must conduct any 
necessary adjudicatory steps, and may re-interview to determine 
eligibility. In numerically controlled immigrant visa categories, an 
applicant's immigrant visa priority date may no longer be current once 
sanctions under INA 243(d) are lifted, in which case the applicant must 
await visa availability.

    Dated: April 11, 2019
Carl C. Risch,
Assistant Secretary for Consular Affairs, Department of State.
[FR Doc. 2019-08061 Filed 4-19-19; 8:45 am]
 BILLING CODE 4710-06-P