[Federal Register Volume 87, Number 168 (Wednesday, August 31, 2022)]
[Rules and Regulations]
[Pages 53373-53375]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-18810]


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DEPARTMENT OF STATE

22 CFR Part 41

[Public Notice: 11809]
RIN 1400-AE71


Visas: Eligibility for Diplomatic Visa Issuance In the United 
States

AGENCY: Department of State.

ACTION: Final rule.

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SUMMARY: This rule is promulgated to add categories of nonimmigrants 
who may be issued nonimmigrant visas in the United States. This 
amendment will add a limited category of nonimmigrants who are born in 
the United States, but not subject to the jurisdiction thereof, to 
noncitizens maintaining A-1, A-2, C-2, C-3, G-1, G-3, G-4, or NATO 
nonimmigrant status and properly classifiable as such. The goal of 
these revisions is to codify the longstanding policy allowing such 
children to be issued diplomatic visas domestically to document their 
entitlement to A, C, G, or NATO nonimmigrant status.

DATES: This rule is effective August 31, 2022.

FOR FURTHER INFORMATION CONTACT: Andrea Lage, Acting Senior Regulatory 
Coordinator, Visa Services, Bureau of Consular Affairs, 600 19th Street 
NW, Washington, DC 20522, 202-485-7586, [email protected].

SUPPLEMENTARY INFORMATION:

What changes to 22 CFR 41.111 does the Department propose?

    This rule amends the regulation identifying categories of 
nonimmigrants who may be issued nonimmigrant visas in the United 
States, by adding a limited category of nonimmigrants who are born in 
the United States, but not subject to the jurisdiction thereof, as they 
were born to certain nonimmigrants maintaining A-1, A-2, C-2, C-3, G-1, 
G-3, G-4, or NATO status and properly classifiable as such.
    Prior to this amendment, the regulation identifying categories of 
noncitizens authorized to obtain diplomatic nonimmigrant visas in the 
United States limited issuance to noncitizens ``currently maintaining 
status'' and ``properly classifiable'' in the A, C-2, C-3, G, or NATO 
nonimmigrant visa categories, and required that the noncitizens have 
evidence that they have ``been lawfully admitted in that status or 
have, after admission, had their classification changed to that 
status'' and their ``period of authorized stay in the United Sates in 
that status has not yet expired.'' 22 CFR 41.111(b)(1). The Department 
of State determines whether a noncitizen is maintaining A or G status, 
the most common visa categories impacted for purposes of the present 
rule. (See e.g., 8 CFR 214.2(a)(1) and (g)(1), which provide that A and 
G nonimmigrants are admitted to the United States by the Department of 
Homeland Security for the ``duration of the period for which the alien 
continues to be recognized by the Secretary of State as being entitled 
to that status.'') Noncitizens previously admitted to the United States 
who are seeking domestic visa issuance satisfy the requirement, set out 
in the amended regulation, that they have been ``admitted [to the 
United States] in [A, C, G, or NATO] status'' or have ``had their 
classification changed to [A, C, G, or NATO] status'' by providing 
documentation from the Department of Homeland Security, such as an I-
94.
    Children born in the United States to parents maintaining certain A 
or G nonimmigrant status and benefiting

[[Page 53374]]

from diplomatic agent level immunities are not considered born subject 
to the jurisdiction of the United States and therefore do not acquire 
U.S. citizenship at birth under the Fourteenth Amendment. While not 
common, certain children born to parents in C-2, C-3 and NATO status 
also may not acquire U.S. citizenship at birth. This limited group of 
children would therefore be present in the United States without any 
documentation of their A, C-2, C-3, G or NATO nonimmigrant status. The 
Department's policy is that such children should be issued 
documentation of their A, C-2, C-3, G or NATO nonimmigrant status, as 
provided for by law for derivatives of the principal nonimmigrant. This 
amendment will codify existing policy permitting diplomatic visa 
issuance in the United States to this limited group of children, whose 
parents and other family members already are covered by the regulation 
describing issuance of diplomatic visas in the United States. This 
procedure is consistent with Department of State accreditation policy, 
which requires that derivative family members of those in A and G 
status possess a valid A or G visa.
    In this rulemaking, the other categories of noncitizens eligible 
for visa issuance in the United States remain unchanged.

Regulatory Findings

A. Administrative Procedure Act

    This rule is exempt from notice and comment as it involves a 
foreign affairs function of the United States. 5 U.S.C. 553(a).
    An action will fall within the exception if it ``clearly and 
directly'' involves a foreign affairs function. Capital Area 
Immigrants' Rights Coal. v. Trump, 471 F. Supp. 3d 25, 53 (D.D.C. 2020) 
(``to be covered by the foreign affairs function exception, a rule must 
clearly and directly involve activities or actions characteristic to 
the conduct of international relations''). Cases that directly involve 
the conduct of foreign affairs include rules that regulate foreign 
diplomats in the United States. E.B. et al. v. Dep't of State, Civil 
Action 19-2856 at 11 (D.D.C. Feb. 4, 2022); CAIR v. Trump, 471 F. Supp. 
3d 25, 54 (D.D.C. 2020). For example, in City of N.Y. v. Permanent 
Mission of India to the U.N., the Second Circuit found that a State 
Department Federal Register Notice regarding exemptions from real 
property taxes imposed by state and local governments validly invoked 
the foreign affairs exemption because the regulation of 
``quintessential foreign affairs functions such as diplomatic relations 
and the regulation of foreign missions [. . .] clearly and directly 
involves a `foreign affairs function' '' City of N.Y. v. Permanent 
Mission of India to the U.N., 618 F.3d 172, 202 (2d Cir. 2010).
    This rule governs the issuance of visas to foreign diplomats and 
their family members in the United States and thus similarly implicates 
matters of diplomacy directly. It also is about a matter that is likely 
to have significant reciprocal consequences for the treatment of U.S. 
diplomatic personnel overseas. In the absence of a rule governing the 
domestic issuance of visas to the children of foreign mission officials 
born within the United States, the mission members may be required to 
travel overseas and apply for a visa for their child before reentering 
the United States to continue their assignment. These children may also 
face difficulties in traveling within the United States if they do not 
possess a valid visa. This rule regulates the treatment of foreign 
missions to allow for regular diplomatic relations between countries, 
and directly invokes a foreign affairs function. Requiring foreign 
mission personnel and their children to travel overseas and apply for a 
new diplomatic visa similarly invites reciprocal requirements on U.S. 
diplomatic personnel, significantly affecting the ability of U.S. 
diplomatic personnel to engage with foreign partners and conduct the 
work of foreign relations if they must depart the host country to 
obtain a new visa for the child. The State Department is best 
positioned to make determinations about such matters of international 
reciprocity--a point acknowledged by several district courts to justify 
the foreign affairs exception for rules such as this. See CAIR, 471 F. 
Supp. 3d at 54 (exempting such rules from notice and comment rulemaking 
``makes sense'' because ``in the diplomatic context, agency action may 
be grounded in international reciprocity'').

B. 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, the Department 
certifies that this rule will not have a significant economic impact on 
a substantial number of small entities.

C. 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 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 involve 
individuals, and does not affect, state, local, or Tribal governments, 
or businesses.

D. Congressional Review Act of 1996

    This rule is not a major rule as defined in 5 U.S.C. 804. 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.

E. Executive Orders 12866 (Regulatory Planning and Review) and 13563 
(Improving Regulation and Regulatory Review)

    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 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. This rule will ensure consistency with U.S. and 
international law, and the benefits of the clarity will benefit the 
foreign relations of the United States. There are no anticipated costs 
to the public associated with this rule. This rule has been forwarded 
to the Office of Information and Regulatory Affairs and has been 
designated not significant under Executive Order 12866.

[[Page 53375]]

F. Executive Orders 12372 and 13132

    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.

G. Executive Order 12988

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

H. 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.

I. 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 to read 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; 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. Section 41.111 is amended by revising paragraph (b) to read as 
follows:


Sec.  41.111  Authority to issue visa.

* * * * *
    (b) Issuance in the United States in certain cases. The Deputy 
Assistant Secretary for Visa Services and such officers of the 
Department as the former may designate are authorized, in their 
discretion, to issue nonimmigrant visas, including diplomatic visas, in 
the United States, to:
    (1) Qualified applicants who are currently maintaining status and 
are properly classifiable in the A, C-2, C-3, G or NATO category and 
intend to reenter the United States in that status after a temporary 
absence abroad and who also present evidence that:
    (i) They have been lawfully admitted in that status or have, after 
admission, had their classification changed to that status; and
    (ii) Their period of authorized stay in the United States in that 
status has not expired; and
    (2) Children who are born in the United States, but who are not 
subject to the jurisdiction thereof because they are born to certain 
qualified individuals who are currently maintaining status and are 
properly classifiable in the A, C-2, C-3, G or NATO category.
    (3) Other qualified applicants who:
    (i) Are currently maintaining status in the E, H, I, L, O, or P 
nonimmigrant category;
    (ii) Intend to reenter the United States in that status after a 
temporary absence abroad; and
    (iii) Who also present evidence that:
    (A) They were previously issued visas at a consular office abroad 
and admitted to the United States in the status which they are 
currently maintaining; and
    (B) Their period of authorized admission in that status has not 
expired.

Rena Bitter,
Assistant Secretary for Consular Affairs, Department of State.
[FR Doc. 2022-18810 Filed 8-30-22; 8:45 am]
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