[Federal Register Volume 86, Number 33 (Monday, February 22, 2021)]
[Rules and Regulations]
[Pages 10453-10456]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-02552]


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DEPARTMENT OF STATE

22 CFR Part 41

[Public Notice: 10642]
RIN 1400-AE21


Visas: Eligibility for Diplomatic and Official Visas

AGENCY: Department of State.

ACTION: Final rule.

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SUMMARY: This rule is promulgated for two reasons: To revise the 
definition of ``equivalent of a diplomatic passport'' to include non-
national passports issued by a competent authority other than a foreign 
government and as designated by the Secretary of State; and to clarify 
the categories of nonimmigrants who may be eligible for a ``diplomatic 
type'' or ``official type'' visa, irrespective of the nonimmigrant visa 
classification. These technical revisions provide greater clarity and 
consistency with existing U.S. law and practices regarding the entities 
that the United States considers eligible to issue travel documents and 
the individuals who may qualify for ``diplomatic type'' or ``official 
type'' visas, irrespective of the nonimmigrant visa classification.

DATES: This rule is effective February 22, 2021.

FOR FURTHER INFORMATION CONTACT: Megan Herndon, Senior Regulatory 
Coordinator, Office of Visa Services, Bureau of Consular Affairs, 600 
19th Street NW, Washington, DC 20522, 202-485-8910, [email protected].

SUPPLEMENTARY INFORMATION:

Equivalent of a Diplomatic Passport

    This rule revises the definition of ``equivalent of a diplomatic 
passport'' at 22 CFR 41.26(a)(3) to include a travel document issued by 
a competent authority that does not issue diplomatic passports, and is 
designated by the Secretary as the equivalent of a diplomatic passport.
    Section 101(a)(30) of the Immigration and Nationality Act 
(``INA''), 8 U.S.C. 1101(a)(30), defines a passport as ``any travel 
document issued by [a] competent authority showing the bearer's origin, 
identity, and nationality if any, which is valid for the admission of 
the bearer into a foreign country.'' The Department of State 
(``Department'') has clarified its interpretation of this definition in 
regulations at 22 CFR 41.104(a), specifying that a passport is not 
limited to a national passport or to any single document.
    The Department also defines what it considers to be the 
``equivalent of a diplomatic passport'' in 22 CFR 41.26(a)(3). This 
definition was previously limited to a national passport issued by a 
competent authority of a foreign government, which generally does not 
issue diplomatic passports to its career diplomatic and consular 
officers. This definition, however, did not account for other travel 
documents that the Department encounters, including those issued by a 
competent authority other than a foreign government to indicate the 
holder's status as an official or officer of the issuing entity. For 
example, an officer of the United Nations (``UN'') might present a UN 
Laissez-Passer, which meets the legal definition of a passport under 
INA section 101(a)(30), 8 U.S.C. 1101(a)(30), since UN member states 
will generally admit individuals bearing the Laissez-Passer. Under this 
rule, the Secretary can designate travel documents issued by a 
competent authority other than that of a foreign government as the 
equivalent of a diplomatic passport, when appropriate.

Categories of Individuals Who May Qualify for a ``Diplomatic Type'' or 
``Official Type'' Visa, Irrespective of Visa Classification

    The Department is also revising its regulations on ``diplomatic 
type'' and ``official type'' visas at 22 CFR 41.26 and 41.27, 
respectively, to ensure consistency with U.S. laws and policies

[[Page 10454]]

that have taken effect since the last substantive revisions in 1959.

Visa Classification Versus Visa Type

    Visa classification is not the same as visa type. Section 
101(a)(15) of the INA, 8 U.S.C. 1101(a)(15), defines classes of 
nonimmigrants based upon the purpose of travel. Implementing 
regulations at 22 CFR 41.12 assign classification symbols to these 
nonimmigrants to correspond to the INA 101(a)(15) subsection 
classification. The visa classification symbol is recorded in each 
nonimmigrant's visa record and printed on the front of every issued 
nonimmigrant visa as ``Visa Class.'' For example, a visa issued to a 
nonimmigrant who is classifiable under INA section 101(a)(15)(A)(i), 8 
U.S.C. 1101(a)(15)(A)(i), is assigned the visa classification symbol 
``A1.''
    The Department issues three ``types'' of nonimmigrant visas: 
Diplomatic, official, and regular. The visa type is recorded in each 
nonimmigrant's visa record and printed on the front of every issued 
nonimmigrant visa as ``Visa Type.'' Section 101(a)(11) of the INA, 8 
U.S.C. 1101(a)(11), defines ``diplomatic visa'' as a nonimmigrant visa 
bearing that title and issued to a nonimmigrant in accordance with such 
regulations as the Secretary of State may prescribe. Implementing 
regulations at 22 CFR 41.26(c) clarify that a nonimmigrant is eligible 
to receive a ``diplomatic visa,'' irrespective of visa classification, 
if he or she is otherwise qualified and possesses a diplomatic 
passport, or its equivalent, and falls within the categories listed in 
22 CFR 41.26(c). The INA does not define ``official visa'' but the term 
is referenced at INA section 222(h)(1)(A)(iv), 8 U.S.C. 
1202(h)(1)(A)(iv), along with diplomatic visas. Implementing 
regulations at 22 CFR 41.27(c) clarify that a nonimmigrant is eligible 
to receive an ``official visa,'' irrespective of visa classification, 
if he or she is otherwise qualified and falls within the categories 
listed in 22 CFR 41.27(c). A ``regular visa'' is defined in 22 CFR 
41.101(e) as a nonimmigrant visa of any classification which does not 
bear the title ``Diplomatic'' or ``Official'' and clarifies that a 
nonimmigrant visa is issued as a regular visa, unless the alien falls 
within one of the classes entitled to a diplomatic or official visa. 
The appropriate visa type--diplomatic, official, or regular--is 
recorded in each nonimmigrant's visa record and designated on the front 
of every issued nonimmigrant visa as ``Visa Type'' with a ``D,'' ``O,'' 
or ``R'' symbol, respectively.
    As described above, the terms ``diplomatic visa'' and ``official 
visa'' are used in the INA and in Department regulations to refer to 
visa type, not visa classification. See INA 101(a)(11), 8 U.S.C. 
1101(a)(11); see also 22 CFR 41.26-27. Thus, for instance, a 
nonimmigrant classifiable under INA 101(a)(15)(B) who has a diplomatic 
passport and falls within one of the categories specified in 22 CFR 
41.26(c)(1) may be issued a diplomatic type B1/B2 visa if found 
eligible for the B1/B2 visa classification. However, the public often 
uses and understands the terms ``diplomatic visa'' and ``official 
visa'' to refer to visa classification, in particular the A1, A2, C3, 
G1, G2, G3, G4, NATO1, NATO2, NATO3, NATO4, NATO5, and NATO6 visa 
classifications. To avoid confusion, this rule uses the terms 
``diplomatic type,'' ``official type,'' and ``regular type'' to clarify 
when a reference is to visa type and not to visa classification.

Changes to Categories of Individuals Who May Qualify for a ``Diplomatic 
Type'' or ``Official Type'' Visa, Irrespective of Visa Classification

    Specifically, this rule will update terminology in 22 CFR 
41.26(c)(1)(xii) from ``officers of a diplomatic mission of a temporary 
character'' to ``officers of a foreign government.'' The rule will also 
update the terminology in 22 CFR 41.27(c)(1)(ix), 41.27(c)(1)(x), and 
41.27(c)(1)(xi) from ``clerical and custodial employees'' to 
``administrative, service, and similar emloyees'' and update the 
terminology referring to ``diplomatic mission'' to ``foreign-government 
delegation.'' These updates reflect more consistent application of 
similar terminology used within the Department for government officials 
and employees traveling to the United States for official duties.
    The rule also replaces 22 CFR 41.27(c)(1)(xiii), which previously 
provided that attendants, servants, and personal employees of foreign 
government officials and staff of international organizations (i.e., 
nonimmigrants classifiable A3 and G5) were eligible to receive official 
type visas. Removing this category ensures that such applicants will be 
interviewed when applying for A3 or G5 nonimmigrant visas, a change 
consistent with the William Wilberforce Trafficking Victims Protection 
Reauthorization Act of 2008, 8 U.S.C. 1375c(b)(1)(B). That law mandates 
visa interviews for these applicants, whereas 22 CFR 41.102(b)(2) 
otherwise permits waivers of the interview requirement for applicants 
for an official type visa. Such attendants, servants, and personal 
employees will continue to be classifiable as A3 or G5.
    This rule also corrects previous errors in a number of other 
provisions in 22 CFR 41.26 and 41.27. Section 41.26(c)(2)(vi)(A) is 
updated to correct a typographical error. Sections 41.26(c)(1)(xiv), 
41.26(c)(2)(xiii), and 41.27(c)(1)(xiii), the categories for immediate 
family, are updated to correct numbering of the subsections and to 
ensure consistency in language used to describe these categories. 
Section 41.27(c)(1)(i) is updated to correct an error in the referenced 
category of individuals to whom this section applies. Sections 
41.27(c)(1)(ii) and (iii) are updated to clarify that these categories 
only cover aliens classifiable under INA sections 101(a)(15)(A)(i); 
101(a)(15)(A)(ii); 101(a)(15)(G)(i); 101(a)(15)(G)(ii); 
101(a)(15)(G)(iv); 8 U.S.C. 1101(a)(15)(A)(i); 1101(a)(15)(A)(ii); 
1101(a)(15)(G)(i); 1101(a)(15)(G)(ii); 1101(a)(15)(G)(iv), and not to 
aliens classifiable under INA section 101(a)(15)(A)(iii) or INA section 
101(a)(15)(G)(v); 8 U.S.C. 1101(a)(15)(A)(iii) or 8 U.S.C. 
1101(a)(15)(G)(v). Aliens classifiable under INA section 
101(a)(15)(G)(iii), 8 U.S.C. 1101(a)(15)(G)(iii), are covered in a new 
22 CFR 41.27(c)(1)(iv). Because of the addition of a new 22 CFR 
41.27(c)(1)(iv), the numbering for subsections following 22 CFR 
41.27(c)(1)(iv) is updated.
    Section 41.26(c) is also updated to include the requirement of 
presenting a diplomatic passport or its equivalent for all subsections 
of 22 CFR 41.26(c), consistent with 22 CFR 41.104(d), which requires 
that every applicant for a diplomatic type visa present a diplomatic 
passport or the equivalent thereof.

Regulatory Findings

Administrative Procedure Act

    This rule is exempt from notice and comment under the foreign 
affairs exception of the Administrative Procedure Act (``APA''), 5 
U.S.C. 553(a)(1). As the federal agency responsible for carrying out 
U.S. foreign policy, the Department has exclusive authority to 
determine when an applicant can be issued a diplomatic type or official 
type visa. As discussed above, INA section 101(a)(11) defines a 
``diplomatic visa'' as ``a nonimmigrant visa bearing that title and 
issued to a nonimmigrant in accordance with such regulations as the 
Secretary of State may prescribe.'' 8 U.S.C. 1101(a)(11). The 
Department exercises its statutory discretion when issuing diplomatic 
type visas. Issuance of diplomatic type visas is limited to a narrow 
category of individuals holding certain positions

[[Page 10455]]

within a foreign government, such as heads of states, cabinet 
ministers, ambassadors and public ministers. Further, the Department 
exercises its statutory discretion when issuing official type visas. 
For example, aliens who are not eligible to receive a diplomatic type 
visa and are classifiable under INA 101(a)(15)(A), 8 U.S.C. 
1101(a)(15)(A), are eligible to received official type visas. Aliens 
classifiable under INA 101(a)(15)(A), 8 U.S.C. 1101(a)(15)(A), must be 
``accepted'' by the Secretary of State. 8 U.S.C. 1101(a)(15)(A)(i) and 
(ii). Thus, the Secretary's discretion in promulgating regulations as 
they relate to issuing diplomatic type and official type visas 
``involve[s]. . .a foreign affairs function of the United States.'' 5 
U.S.C. 553(a)(1). In Raoof v. Sullivan, the court found that the 
Department properly exercised the foreign affairs exception under the 
APA when it ``did not engage in formal rule-making'' for the J-1 
nonimmigrant visa two-year foreign residence requirement because the 
``the exchange visitor program--with its statutory mandate for 
international interaction through nonimmigrants--certainly relates to 
foreign affairs and diplomatic duties conferred upon the Secretary of 
State and the State Department.'' 315 F.Supp.3d 34, 44 (D.D.C. 2018). 
This rule, which codifies Department policy regarding which aliens are 
treated as diplomats in the issuance of a visa, directly relates to the 
Department's authority to carry out diplomatic duties and inherently 
involves the Secretary of State's foreign affairs functions.
    This rule clearly and directly impacts foreign affairs functions of 
the United States and ``implicat[es] matters of diplomacy directly.'' 
City of N.Y. v. Permanent Mission of India to the U.N., 618 F.3d 172, 
201 (2d Cir. 2010). The foreign-affairs exception covers this final 
rule, as it is ``linked intimately with the Government's overall 
political agenda concerning relations with another country.'' Am. Ass'n 
of Exporters & Importers-Textile & Apparel Grp. v. United States, 751 
F.2d 1239, 1249 (Fed. Cir. 1985). Opening this process to public 
comment would most directly affect a particular group of individuals, 
foreign government officials and officers of international 
organizations, who were eligible for diplomatic type or official type 
visas under the prior rule and who may still qualify for diplomatic 
type or official type visas, regardless of their purpose of travel or 
visa classification. Eligibility for such visa types, which is the 
subject of this rule, may determine whether the applicant is required 
to go to a U.S. Embassy or Consulate for a visa interview, and 
potentially be eligible for certain courtesies at the port of entry to 
the United States. The rule discusses standards to be applied by 
consular officers, which will determine the type of visa (but not the 
visa classification) the visa applicant will receive. Because the 
above-referenced stakes are very significant to individuals who already 
receive any courtesies attached to the visa type, public comment on 
eligibility to receive a diplomatic type or official type visa would 
provoke immediate and strident response from the diplomatic community, 
in particular certain high ranking foreign government officials that 
may be important to the United States' ability to achieve bilateral 
objectives. Accordingly, this situation is comparable to the situation 
in Am. Ass'n of Exps. & Imps.-Textile & Apparel Grp. v. United States, 
751 F.2d 1239, 1249 (Fed. Cir. 1985) (ruling that stricter import 
restrictions would provoke immediate response from foreign 
manufacturers). Therefore, this regulation is exempt from 5 U.S.C. 553 
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. Therefore, a regulatory 
flexibility analysis under the Regulatory Flexibility Act, as amended, 
is not required.

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.

Congressional Review Act

    This rule is not a major rule as defined in 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 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). This rule will not affect 
the economy by $100 million or more annually. 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. The Department 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 
has determined that this rulemaking is a significant rulemaking under 
Executive Order 12866 and, consequently, reviewed this rulemaking.
    The Department notes that this regulatory change only impacts the 
visa type (regular, diplomatic or official); it does not affect visa 
classification which is based on purpose of travel. Domestic workers of 
foreign government officials and international organization officers 
(aliens classifiable A-3 or G-5) are the only category of individuals 
being removed from the categories of individuals eligible for official 
type visas under this regulation. Such individuals do not typically 
have a diplomatic or official passport; they travel on regular 
passports. Although qualification for an official type visa may provide 
some courtesies such as exemption from visa fees, such courtesies are 
already attached to the A3 and G5 domestic worker visa classifications, 
so they are not losing a benefit. Moreover, even though official type 
visa applicants applying with an official passport may have their 
interview waived, the Trafficking Victims Protections Reauthorization 
Act of 2003 (TVPRA), Public Law 108-193, requires an interview for all 
A3 and G5 nonimmigrants so such courtesy may not be extended to an A3 
or G5 nonimmigrant.

[[Page 10456]]

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. 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 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.

Executive Order 13771

    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 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 41

    Aliens, Foreign Officials, Immigration, Passports, and Visas.

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

PART 41 VISAS--DOCUMENTATION OF NONIMMIGRANTS UNDER THE IMMIGRATION 
AND NATIONALITY ACT, AS 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; 8 U.S.C. 1323; 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. Amend Sec.  41.26 by:
0
a. Revising paragraphs (a)(3), (c) introductory text, (c)(1) 
introductory text, and (c)(1)(xii) and (xiv);
0
b. Removing the period at the end of paragraph (c)(1)(xvi) and adding 
``; or'' in its place; and
0
c. Revising paragraphs (c)(2) introductory text, (c)(2)(vi)(A), and 
(c)(2)(xiii).
    The revisions read as follows:


Sec.  41.26   Diplomatic visas.

    (a) * * *
    (3) Equivalent of a diplomatic passport means a passport that:
    (i) Is issued by a competent authority that does not issue 
diplomatic passports and
    (ii) Has been designated by the Secretary as the equivalent of a 
diplomatic passport.
* * * * *
    (c) Classes of aliens eligible to receive diplomatic visas. A 
nonimmigrant alien who presents a diplomatic passport or its equivalent 
shall, if otherwise qualified, be eligible to receive a diplomatic visa 
if:
    (1) The nonimmigrant alien is within one of the following 
categories, irrespective of the classification of the visa under Sec.  
41.12:
* * * * *
    (xii) Officers of a foreign government proceeding to the United 
States on a temporary basis or through the United States in the 
performance of their official duties;
* * * * *
    (xiv) Members of the immediate family of a principal alien who is 
within one of the classes described in paragraphs (c)(1)(i) through 
(xi) of this section;
* * * * *
    (2) The alien is classifiable as a G-4 and is accompanying any of 
these officers:
    (vi) * * *
    (A) United Nations Children's Fund;
* * * * *
    (xiii) Members of the immediate family accompanying or following to 
join any principal nonimmigrant alien listed in paragraphs (c)(2)(i) 
through (xii) of this section.
* * * * *

0
3. Amend Sec.  41.27 by revising paragraphs (c)(1)(i) through (xiii) to 
read as follows:


Sec.  41.27  Official visas.

* * * * *
    (c) * * *
    (1) * * *
    (i) Aliens within a category described in Sec.  41.26(c)(1) who are 
ineligible to receive a diplomatic visa because they are not in 
possession of a diplomatic passport or its equivalent;
    (ii) Aliens classifiable under INA section 101(a)(15)(A)(i) or 
(ii), 8 U.S.C. 1101(a)(15)(A)(i) or (ii);
    (iii) Aliens who are classifiable under INA section 
101(a)(15)(G)(i), (ii), or (iv), 8 U.S.C. 1101(a)(15)(G)(i), (ii), or 
(iv);
    (iv) Aliens who are classifiable under INA section 
101(a)(15)(G)(iii), 8 U.S.C. 1101(a)(15)(G)(iii), as representatives of 
a foreign government traveling to an international organization so 
designated by Executive Order, where such foreign government is not a 
member of the international organization;
    (v) Aliens classifiable under INA section 101(a)(15)(C), 8 U.S.C. 
1101(a)(15)(C), as nonimmigrants described in INA section 212(d)(8), 8 
U.S.C. 1182(d)(8);
    (vi) Members and members-elect of national legislative bodies;
    (vii) Justices of the lesser national and the highest state courts 
of a foreign country;
    (viii) Officers and employees of national legislative bodies 
proceeding to or through the United States in the performance of their 
official duties;
    (ix) Administrative, service, and similar employees attached to 
foreign-government delegations to, and employees of, international 
bodies of an official nature, other than international organizations so 
designated by Executive Order, proceeding to or through the United 
States in the performance of their official duties;
    (x) Administrative, service, and similar employees of a foreign 
government proceeding to the United States on temporary duty or through 
the United States on a temporary basis in the performance of their 
official duties;
    (xi) Administrative, service, and similar employees attached to 
foreign-government delegations proceeding to or from a specific 
international conference of an official nature;
    (xii) Officers and employees of foreign governments recognized de 
jure by the United States who are stationed in foreign contiguous 
territories or adjacent islands;
    (xiii) Members of the immediate family when accompanying or 
following to join a principal alien who is within one of the classes 
referred to or described in paragraphs (c)(1)(i) through (xii) of this 
section;
* * * * *

Zachary Parker,
Director, Office of Directives Management, Department of State.
[FR Doc. 2021-02552 Filed 2-19-21; 8:45 am]
BILLING CODE 4710-06-P