[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]
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