[Federal Register Volume 84, Number 87 (Monday, May 6, 2019)]
[Rules and Regulations]
[Pages 19712-19715]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-09185]


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DEPARTMENT OF STATE

22 CFR Part 40

[Public Notice: 10571]
RIN 1400-AE72


Visas: Waiver for Ineligible Nonimmigrants Under Section 
212(d)(3)(A)(i) of the Immigration and Nationality Act

AGENCY: Department of State.

ACTION: Final rule.

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SUMMARY: Under the Immigration and Nationality Act (INA), a visa 
applicant found inadmissible is ineligible for a visa and for admission 
to the United States. The INA provides the Secretary of State and 
consular officers the authority to recommend that the U.S. Department 
of Homeland Security (DHS) approve a waiver, of most grounds of 
inadmissibility, that will allow the nonimmigrant visa applicant to be 
issued a visa and seek admission to the United States. This rule amends 
U.S. Department of State (``State'') regulations relating to consular 
officer recommendations relating to DHS waivers for nonimmigrant visa 
applicants, including the requirement that a consular officer, upon the 
request of an applicant, must submit a report to State concerning a 
waiver. Under the revised rule, consular officers will be required to 
refer waiver requests to State only when they involve security-related 
inadmissibility grounds or, with respect to applicant requests, only if 
the case meets circumstances where a referral is required by State 
guidance. The rule does not infringe current consular officer 
discretion to refer cases to State or to make recommendations directly 
to the Department of Homeland Security.

DATES: This rule is effective on May 6, 2019.

FOR FURTHER INFORMATION CONTACT: Taylor Beaumont, Acting Chief, 
Legislation and Regulations Division, Legal Affairs, Office of Visa 
Services, Bureau of Consular Affairs, 600 19th Street NW, Washington, 
DC 20522, 202-485-8910, [email protected].

SUPPLEMENTARY INFORMATION: Aliens are ineligible to receive visas if 
they are inadmissible under any of the grounds in section 212(a) of the 
Immigration and Nationality Act (INA), 8 U.S.C. 1182(a). Section 
212(d)(3)(A)(i) of the INA, 8 U.S.C. 1182(d)(3)(A)(i), authorizes the 
Department of Homeland Security to approve a waiver covering most 
grounds in section 212(a) of the INA, if the Secretary of State or a 
consular officer recommends that the alien be admitted temporarily into 
the United States, despite the inadmissibility. This provision does not 
authorize waivers under INA sections 212(a)(3)(A)(i)(I) (espionage or 
sabotage), (3)(A)(ii) (unlawful activity), (3)(A)(iii) (opposition to 
or overthrow of United States Government or opposition by force, 
violence, or unlawful means), (3)(C) (serious adverse foreign policy 
consequences), (3)(E)(i) (participation in Nazi persecutions), or 
(3)(E)(ii) (participation in genocide)). State regulations at 22 CFR 
40.301 describe the authority of consular officers to recommend 
waivers.
    For cases in which a nonimmigrant visa applicant is inadmissible 
based on an inadmissibility ground for which a waiver may be granted 
under section 212(d)(3)(A)(i) of the INA, and the consular officer has 
decided not to recommend a DHS waiver on the officer's own authority, 
but the applicant or an interested party insists on pursuing a waiver, 
22 CFR 40.301 currently requires the consular officer to refer the 
request to State for a possible exercise of the Secretary of State's 
authority to recommend a waiver to

[[Page 19713]]

DHS. Neither section 212(d)(3)(A)(i) of the INA nor Department 
regulations prescribe standards or criteria for the consular officers 
making referrals to State. While the INA makes no express provision for 
the submission by nonimmigrant visa applicants of requests for section 
212(d)(3)(A)(i) waivers, State created an avenue for such requests in 
22 CFR 40.301(a). See 24 FR 6678, 6686 (1959) (formerly 22 CFR 
41.95(a)).
    This final rule modifies the non-statutory requirement for consular 
officers to refer section 212(d)(3)(A)(i) waiver requests to State for 
consideration based on an applicant's request, by limiting it to 
specified circumstances. This rule will increase transparency for 
inadmissible aliens seeking an exercise of the Secretary's authority to 
recommend DHS grant a waiver, and will limit the requirement that 
consular officers refer waiver requests to circumstances that involve a 
key State interest, as reflected in the enumerated criteria. This rule 
has no impact on cases involving security-related grounds of 
inadmissibility, which consular officers must consider in accordance 
with other State guidance, on consular officers' existing discretion to 
pursue waivers on behalf of ineligible visa applicants, or on the 
factors DHS considers in exercising its section 212(d)(3)(A) waiver 
authority.
    Under this rule, which constitutes an exercise of the Secretary of 
State's authority under section 212(d)(3)(A)(i) of the INA, consular 
officers are required to refer waiver requests to State in response to 
a request from the Secretary of State, whose request shall be presumed 
to meet one of the criteria (paragraphs 1-5) enumerated below, or in 
response to a request from a visa applicant for a case that the 
consular officer has reason to believe involves one of the following 
circumstances:
    1. Foreign Relations: Refusal of the nonimmigrant visa application 
would become a bilateral irritant or be raised by a foreign government 
with a high ranking United States Government official;
    2. National Security: The nonimmigrant visa applicant's admission 
to the United States would advance a U.S. national security interest;
    3. Law Enforcement: The nonimmigrant visa applicant's admission to 
the United States would advance an important U.S. law enforcement 
objective;
    4. Significant Public Interest: The nonimmigrant visa applicant's 
admission to the United States would advance a significant U.S. public 
interest ; or
    5. Urgent humanitarian or medical reasons: The nonimmigrant visa 
applicant's admission to the United States is warranted due to urgent 
humanitarian or medical reasons.
    Consistent with this exercise of the Secretary's authority to 
recommend a waiver under section 212(d)(3)(A)(i) of the INA, this rule 
also clarifies that requests by the Secretary for a consular officer to 
submit a report to State are presumed to involve one of the enumerated 
circumstances. In addition, this rule includes technical edits to 
improve the structure and clarity of 22 CFR 40.301, revise the heading 
of paragraph (b) to clarify that consular officers are permitted to 
submit recommendations to a designated DHS office, and eliminate the 
requirement that the Secretary of State define certain categories of 
cases for which consular officers may recommend waivers directly to 
DHS.
    The rule clarifies existing State guidance that consular officers 
may refer to State, but may not submit directly to DHS, a 
recommendation to DHS to waive certain security-related grounds of 
inadmissibility and the rule narrows the scope of other situations in 
which consular officers must refer waiver cases to State, upon request 
of the applicant or on their own initiative, to those cases the 
consular officer believes meet one of the criteria enumerated below. 
This rule does not affect consular officers' existing authority or 
discretion to submit non-security related waiver recommendations 
directly to DHS or refer cases to State. The vast majority of waiver 
recommendations to DHS under section 212(d)(3)(A)(i) of the INA are 
initiated by consular officers without applicant requests. The rule 
does not limit, in any way, DHS's independent discretionary authority 
to approve or deny a waiver. Finally, the rule applies only to visa 
applications for which the consular officer conducts an in person 
interview under section 222(h) of the INA on or after the rule's 
effective date.
    In all cases in which the consular officer: (1) Determines a 
nonimmigrant visa applicant is not eligible for a visa due to 
inadmissibility; (2) decides not to recommend directly that DHS grant a 
waiver; (3) would choose not to refer the case to State to consider 
pursuing a waiver, but the applicant continues to request a waiver; (4) 
determines that there is no reason to believe that one of the criteria 
for referral to State are met; the officer will refuse the visa 
application without referring the case to State, notwithstanding the 
applicant's request. In cases where an applicant requests a waiver 
referral to State, the adjudicating consular officer will determine 
whether the case involves one of the enumerated five criteria and will 
inform the applicant whether or not the officer will make the referral 
to State. While there is no mechanism for applicants to seek 
reconsideration or appeal of a consular officer's determination that 
the request does not satisfy one of the enumerated criteria, affected 
applicants may submit new nonimmigrant visa applications with 
information justifying a waiver under one of the enumerated grounds.

Regulatory Findings

Administrative Procedure Act

    This rule constitutes a rule of policy and procedure, and as a 
result, it is exempt from notice and comment under 5 U.S.C. 
553(b)(3)(A). This final rule limits the non-statutory requirement that 
consular officers refer requests for waivers under INA section 
212(d)(3)(A) to the Department, by specifying limited circumstances, 
based on a new policy, in which such referrals are required. Because 
this is a rule of policy and procedure, it is effective upon 
publication in the Federal Register.

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 of 
State 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 of State 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 directly or substantially affect, 
state, local, or tribal governments, or businesses.

[[Page 19714]]

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.

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 of State has examined this rule in light of Executive Order 
13563, and has determined that the rulemaking is consistent with the 
guidance therein. The Department of State has reviewed this rulemaking 
to ensure its consistency with the regulatory philosophy and principles 
set forth in Executive Order 12866. The Office of Information and 
Regulatory Affairs (OIRA) has determined this rule to be a significant, 
though not economically significant, regulatory action. Consequently, 
OIRA has reviewed this rule. This rule will ensure consistency with 
U.S. and international law and the increased clarity will benefit the 
U.S. public. There are no anticipated direct costs to the public 
associated with this rule.

Executive Orders 12372 and 13132: Federalism

    This regulation will not have substantial direct effect 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 of State 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 of State 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.

Executive Order 13771

    This rule is not subject to the requirements of Executive Order 
13771 because it is de minimis.

Paperwork Reduction Act

    This rule does not impose any new reporting or record-keeping 
requirements subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 
35.

List of Subjects in 22 CFR Part 40

    Aliens, Immigration, Visas.

    Accordingly, for the reasons set forth in the preamble, 22 CFR part 
40 is amended to read as follows:

PART 40--REGULATIONS PERTAINING TO BOTH NONIMMIGRANTS AND 
IMMIGRANTS UNDER THE IMMIGRATION AND NATIONALITY ACT, AS AMENDED

0
1. The authority citation for part 40 is revised to read as follows:

    Authority: 8 U.S.C. 1104, 8 U.S.C. 1182.


0
 2. Section 40.301 is revised to read as follows:


Sec.  40.301  Waiver for ineligible nonimmigrants under INA 
212(d)(3)(A).

    (a) Recommendations under INA 212(d)(3)(A)(i). (1) Consular 
officers, on their own initiative in cases they believe meet one of the 
criteria in paragraphs (a)(2)(i) through (v) of this section, may 
submit a report to the Department for possible transmission to the 
designated DHS office pursuant to INA 212(d)(3)(A)(i) (8 U.S.C. 
1182(d)(3)(A)(i)), in the case of an alien who is classifiable as a 
nonimmigrant but who the consular officer knows or believes is 
ineligible to receive a nonimmigrant visa due to inadmissibility under 
the provisions of INA 212(a) (8 U.S.C. 1182(a)), other than INA 
212(a)(3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C), (3)(E)(i), or 
(3)(E)(ii).
    (2) In response to a request from the Secretary of State, which 
shall be presumed to meet one of the criteria in paragraphs (a)(2)(i) 
through (v) of this section, or in response to a request from a visa 
applicant for a case that the consular officer has reason to believe 
meets one of the criteria in paragraphs (a)(2)(i) through (v), consular 
officers are required to submit a report to the Department for possible 
transmission to the designated DHS office pursuant to INA 212(d)(3)(A) 
in the case of an alien who is classifiable as a nonimmigrant but whom 
the consular officer knows or believes is ineligible to receive a 
nonimmigrant visa due to inadmissibility under the provisions of INA 
212(a), other than INA 212(a)(3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), 
(3)(C), (3)(E)(i), or (3)(E)(ii).
    (i) Foreign Relations: Refusal of the nonimmigrant visa application 
would become a bilateral irritant or be raised by a foreign government 
with a high ranking United States government official;
    (ii) National security. The nonimmigrant visa applicant's admission 
to the United States would advance a U.S. national security interest;
    (iii) Law enforcement. The nonimmigrant visa applicant's admission 
to the United States would advance an important U.S. law enforcement 
objective;
    (iv) Significant public interest. The nonimmigrant visa applicant's 
admission to the United States would advance a significant U.S. public 
interest, or
    (v) Urgent humanitarian or medical reasons. The nonimmigrant visa 
applicant's admission to the United States may be warranted due to 
urgent humanitarian or medical reasons.
    (b) Recommendation to designated DHS office. Consular officers may 
recommend directly to the designated DHS office that the alien be 
admitted temporarily despite his or her inadmissibility in any case 
where a waiver may be available, unless the consular officer has reason 
to believe that the applicant is inadmissible under INA 
212(a)(3)(A)(i), (3)(A)(ii), (3)(A)(iii), (3)(B), (3)(C), (3)(D), 
(3)(E)(i), (3)(E)(ii), (3)(E)(iii), (3)(F), or (3)(G) . The Department 
may recommend that the Secretary of Homeland Security waive 
ineligibility under any ground in section 212(a) of the INA, except for 
sections 212(a)(3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C), 
(3)(E)(i), and (3)(E)(ii).
    (c) Secretary of Homeland Security may impose conditions. When the 
Secretary of Homeland Security authorizes the temporary admission of an 
inadmissible alien as a nonimmigrant and the consular officer is so 
informed,

[[Page 19715]]

the consular officer may proceed with the issuance of a nonimmigrant 
visa to the alien, subject to the conditions, if any, imposed by the 
Secretary of Homeland Security.

Carl C. Risch,
Assistant Secretary for Consular Affairs, Department of State.
[FR Doc. 2019-09185 Filed 5-3-19; 8:45 am]
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