[Federal Register Volume 84, Number 108 (Wednesday, June 5, 2019)]
[Rules and Regulations]
[Pages 25989-25991]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-11762]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF STATE

22 CFR Part 42

[Public Notice: 10641]
RIN 1400-AE74


Visas: Diversity Immigrants

AGENCY: State Department.

ACTION: Interim final rule; notice of request for public comment.

-----------------------------------------------------------------------

SUMMARY: This interim final rule is promulgated to require alien 
petitioners for the Diversity Visa Program to provide certain 
information from a valid, unexpired passport on the electronic entry 
form.

DATES: This interim final rule is effective June 5, 2019. The 
Department of State will accept comments up to July 5, 2019.

ADDRESSES: You may submit comments by the either of the following 
methods:
    Internet: At www.Regulations.gov, you can search for the document 
using the Docket Number DOS-2019-0014 or using the notice RIN 1400-
AE74.
    Email: Taylor Beaumont, Acting Chief, Department of State, 
[email protected].

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

SUPPLEMENTARY INFORMATION:

What changes are in the amended rule?

    The Diversity Visa Program (``DV Program'') is administered 
annually by the Department of State (``Department''). Section 203(c) of 
the Immigration and Nationality Act (``INA''), 8 U.S.C. 1153(c), 
provides for a class of immigrants known as ``diversity immigrants'' 
from countries with historically low rates of immigration to the United 
States. An estimated 14 million aliens register annually for the DV 
Program through an electronic entry form. The entry form collects 
information on the petitioner's full name; date and place of birth; 
gender; native country, if different from place of birth; current 
mailing address; and location of the consular post where the diversity 
visa should be adjudicated, if the petitioner is selected through the 
DV lottery. The electronic entry form also collects information about 
the names, dates and places of birth for the petitioner's spouse and 
children. The entry process is open to all aliens who are natives of 
``low-admission'' countries without numerical limitation, defined as 
countries with fewer than 50,000 natives admitted to the United States 
during the most recent five-year period. After the close of the DV 
Program entry period, petitioners are selected through a randomized 
computer drawing (``selectees'') for consideration for one of the 
50,000 available diversity visa numbers. While INA 201(d) authorizes 
allocation of 55,000 diversity visas annually, 5,000 of those visas are 
allocated each year for use under the Nicaraguan Adjustment and Central 
American Relief Act. See Public Law 105-100, Sec.  203(d) (INA Sec.  
201 note) (1997). Selectees may then apply for a diversity visa or, if 
present in the United States, apply for adjustment of status. To 
qualify for a visa, these selectees must meet certain requirements, 
including those provided for at INA 203(c), 8 U.S.C. 1153(c).
    Section 204(a)(1)(I)(iii) of the INA, 8 U.S.C. 1154(a)(1)(I)(iii), 
vests the Secretary of State with authority to set by regulation the 
information and documentary evidence to support a petition for entry 
into the DV Program. The requirements are set out in 22 CFR 42.33.
    With this rule, the Department is amending 22 CFR 42.33(b)(1) to 
require the petitioner to include on the electronic diversity visa 
entry form the unique serial or issuance number associated with the 
petitioner's valid, unexpired passport; country or authority of 
passport issuance; and passport expiration date. These requirements 
will apply only to the principal petitioner and not derivatives listed 
on the entry form. These requirements apply unless the petitioner is 
either stateless, a national of a Communist-controlled country and 
unable to obtain a passport from the government of the Communist-
controlled country, or the beneficiary of an individual waiver approved 
by the Secretary of Homeland Security and the Secretary of State, 
consistent with the passport waivers for immigrant visa applicants 
provided for in 22 CFR 42.2(d), (e), and (g)(2). A petitioner who does 
not have a passport and is either stateless, is a national of a 
Communist-controlled country and unable to obtain a passport from the 
government of the Communist-controlled country, or has an individual 
waiver of the passport

[[Page 25990]]

requirement from the Secretary of Homeland Security and the Secretary 
of State, must indicate that he or she falls into one of these three 
circumstances on the electronic entry form, instead of providing 
passport information. The requirements for information from a valid 
passport will not be waived under any other circumstances.
    The Department is also clarifying that failure to accurately 
include any information required by 22 CFR 42.33(b)(1) and (2) will 
result in mandatory disqualification of the petitioner for that fiscal 
year. The existing regulations require the petitioner to submit 
specific information, including, but not limited to: Name, date of 
birth, and place of birth for the principal petitioner and any 
relatives that may accompany the petitioner, if selected to apply for a 
diversity visa, as well as a digital photo. While these are currently 
requirements for the diversity visa entry form, existing regulations do 
not make clear the consequence for failure to provide the information. 
The revised regulation clarifies that failure to provide the required 
information, including a compliant photograph, will result in the 
disqualification of the entry, the petitioner, and derivatives from the 
DV Program for that fiscal year.

Why is the Department promulgating this rule?

    The Department has historically encountered significant numbers of 
fraudulent entries for the DV Program each year, including entries 
submitted by criminal enterprises on behalf of individuals without 
their knowledge. Individuals or entities that submit unauthorized 
entries will often contact unwitting individuals whose identities were 
used on selected DV Program entries, inform them of the opportunity to 
apply for a diversity visa, and hold the entry information from the 
named petitioner in exchange for payment. Requiring that each entry 
form include a valid passport number at the time of the DV Program 
entry will make it more difficult for third parties to submit 
unauthorized entries, because third parties are less likely to have 
individuals' passport numbers. Entries submitted by unauthorized third 
parties using a duplicative passport number will also be easily 
identified and automatically disqualified.
    The Department is also adding a sentence to the regulation to 
clarify that entries, and the individual identified as the entrant, are 
disqualified if they fail to include all required information and 
comply with instructions. This will provide increased transparency to 
DV Program entrants who might question why their entry was 
disqualified, by explaining that disqualification will result from 
failure to submit required information. While all DV entrants must 
submit a completed entry form to qualify for selection in the DV 
lottery, current instructions are not clear that failure to provide 
that information results in mandatory disqualification. The information 
collected on the entry form is vital to the integrity of the DV 
Program, by ensuring the Department's ability to match the identity of 
DV lottery selectees and diversity visa applicants. Also, entry forms 
must be complete and accurate to ensure that the Department is 
selecting entries from individuals who may be eligible for visa 
issuance. Providing clear notice that failure to accurately provide 
required information will result in disqualification will reduce the 
number of incomplete forms and reduce entries from individuals who will 
not be eligible for visas, for example, because they cannot provide the 
required information.

Regulatory Findings

Administrative Procedure Act

    The Department is publishing this rule as an interim final rule 
because it is exempt from notice and comment under the foreign affairs 
exception of the Administrative Procedure Act (``APA''), 5 U.S.C. 
553(a). This rule clearly and directly impacts a foreign affairs 
function of the United States. See City of N.Y. v. Permanent Mission of 
India to the U.N., 618 F.3d 172, 202 (2d Cir. 2010). Specifically, as 
explained below, this regulation pertains to a visa program which 
serves as a clear tool of diplomacy and outreach to countries around 
the world. Furthermore, this rule addresses a vulnerability in the 
current application process by making it more difficult for third 
parties to submit fraudulent or unauthorized entries, a practice that 
has significant negative consequences.
    Under Section 204(a)(1)(I) of the INA, the Secretary has the 
authority to determine the information or documents required for the 
diversity visa application and prescribe regulations necessary to carry 
out the DV Program. This rule will add a requirement that foreign 
nationals seeking to enter the DV Program must provide valid passport 
information at the time of DV Program entry.
    The DV Program was established to diversify the immigrant 
population in the United States, but it also serves as an outreach 
tool, as its focus is on building relations with foreign populations 
around the world, particularly with diversity visa eligible countries. 
Diversity visa-eligible countries qualify for that status based on 
limited immigration to the United States by nationals of the country. 
Consequently, the DV Program is an important public diplomacy tool for 
the Department of State, because it offers foreign nationals an 
opportunity to immigrate to the United States without having to qualify 
under a more targeted family-based or employment-based classification. 
This opportunity helps create allies and goodwill overseas, while 
simultaneously promoting U.S. foreign policy interests. A program thus 
tailored to foster allies and goodwill overseas clearly qualifies as 
the exercise of diplomacy. Therefore, this regulation is exempt from 5 
U.S.C. 553 the APA because it involves a foreign affairs function of 
the United States.

Regulatory Flexibility Act/Executive Order 13272: Small Business

    Because this interim final rule is exempt from notice-and-comment 
rulemaking under 5 U.S.C. 553, it is exempt from the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.). Nonetheless, consistent with 
the Regulatory Flexibility Act, the Department certifies that this rule 
will not have a significant economic impact on a substantial number of 
small entities because this rule only regulates individual petitioners 
for the DV Program and does not regulate any small entities or 
businesses.

Small Business Regulatory Enforcement Fairness Act of 1996

    The Office of Information and Regulatory Affairs has determined 
that this is not a major rule as defined by 5 U.S.C. 804.

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 
Office of Information and Regulatory Affairs has determined that this 
is a significant, though not economically significant, regulatory 
action under Section 3(f) of Executive Order 12866.

[[Page 25991]]

    From 2016 to 2018, the average number of entrants for the DV 
Program each year was 14,589,023. The Department estimates that, on 
average, responding to this information request will take approximately 
5 minutes, which includes gathering the passport and supplying the 
number. This estimate does not account for the effort needed to acquire 
a passport for those individuals who do not already have a passport, 
and the Department cannot provide a greater estimate of the time 
required to do that given the varied processes in foreign countries to 
obtain a passport. Using the average hourly wage for all private, non-
farm, payrolls as calculated by the Bureau of Labor Statistics for 
March 2019, $27.70 multiplied by a factor of 1.479 (to account for 
overhead costs) gives a fully-loaded wage of $40.97. Thus the 
opportunity costs associated with the time burden to supply the 
information for this collection are approximately $49,809,356. This 
burden does not account for the capital costs associated with acquiring 
the passport for any individuals who do not already have one. The 
Department acknowledges that some portion of the applicant population 
will need to procure a passport, but has no way of estimating how many 
applicants this would apply to and similarly does not have data 
indicating distributional impacts of this requirement. The benefits of 
enhancing the requirements to enter the DV Program, while difficult to 
quantify, will include reducing fraud and unauthorized entries on 
behalf of unwitting individuals that could result in disqualifying the 
victim.

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 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

    The Department invites comment on any increase in burden imposed by 
the proposed collection of information. Comments are encouraged and 
will be accepted for 30 days from the publication date of the interim 
final rule. All submissions received must include the OMB Control 
Number 1405-0153 in the body of the letter and the agency name. Direct 
comments to the Department of State Desk Officer in the Office of 
Information and Regulatory Affairs at the Office of Management and 
Budget (OMB). You may submit comments by the following methods:
     Email: [email protected]. You must include the 
DS form number, information collection title, and the OMB control 
number in the subject line of your message.
     Fax: 202-395-5806. Attention: Desk Officer for Department 
of State.

Abstract of Proposed Collection

    The Department of State utilizes the Electronic Diversity Visa 
(``EDV'') Entry Form to elicit information necessary to establish the 
eligibility of the petitioner for the DV Program. The two primary 
requirements of the program are: (1) The petitioner is a native of a 
low admission country, and (2) has at least a high school education or 
its equivalent, or within five years of the date of an application for 
a visa has two years of work experience in an occupation which requires 
at least two years of training or experience. This rule proposes to 
amend the EDV Entry Form to require that entrants provide information 
for a valid, unexpired passport. The Department of State randomly 
selects qualified entrants for further participation in the program.

Methodology

    The EDV Entry Form is available online at www.dvlottery.state.gov 
and can only be submitted electronically during the annual entry 
period.

 Title of Information Collection: Electronic Diversity Visa 
Entry Form
 OMB Control Number: 1405-0153
 Type of Request: Revision to a Currently Approved Collection
 Originating Office: CA/VO/L/R
 Form Number: DS-5501
 Respondents: Electronic Diversity Visa Entry Form Respondents
 Estimated Number of Respondents: 14,589,023
 Estimated Number of Responses: 14,589,023
 Average Time per Response: 35 minutes
 Total Estimated Burden Time: 8,510,263 hours
 Frequency: Annually
 Obligation to Respond: Required to Obtain or Retain a Benefit

List of Subjects in 22 CFR Part 42

    Immigration; Passports and visas.

    For the reasons stated in the preamble, the Department amends 22 
CFR part 42 as follows:

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

0
1. The authority citation for part 42 is revised to read as follows:

    Authority: 22 U.S.C. 2651a; 8 U.S.C. 1104; 8 U.S.C. 1151; 8 
U.S.C. 1153-1154; 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. In Sec.  42.33, add paragraphs (b)(1)(viii) and (ix) to read as 
follows:


Sec.  42.33   Diversity immigrants.

* * * * *
    (b) * * *
    (1) * * *
    (viii) The unique serial or issuance number associated with the 
petitioner's valid, unexpired passport, country or authority of 
passport issuance, and expiration date, unless the petitioner would be 
exempt from the passport requirement pursuant to 22 CFR 42.2(d), (e), 
or (g)(2).
    (ix) Failure to accurately include any information or documents 
required by paragraphs (b)(1)(i) through (viii) or paragraph (b)(2) of 
this section will result in disqualification of the entry for that 
fiscal year.
* * * * *

Carl C. Risch,
Assistant Secretary for Consular Affairs, Department of State.
[FR Doc. 2019-11762 Filed 6-4-19; 8:45 am]
 BILLING CODE 4710-06-P