[Federal Register Volume 88, Number 43 (Monday, March 6, 2023)]
[Rules and Regulations]
[Pages 13694-13696]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-04405]


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DEPARTMENT OF STATE

22 CFR Part 41

[Public Notice 11813]
RIN 1400-AE81


Visas: Procedures for Issuing Visas

AGENCY: Department of State.

ACTION: Final rule.

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SUMMARY: The Department of State is updating its regulation regarding 
visa applicants' furnishing of signed photographs as required under 
Section 221(b) of the Immigration and Nationality Act. These updates 
reflect changes in technology, including the ability to upload digital 
photographs electronically as part of the online visa application 
process.

DATES: This final rule is effective on April 5, 2023.

FOR FURTHER INFORMATION CONTACT: Andrea Lage, Acting Regulatory 
Coordinator, Visa Services, Department of State, 600 19th St. NW, 
Washington, DC 20006, (202) 485-7586.

SUPPLEMENTARY INFORMATION: 

What changes is the Department making?

    This rule clarifies that immigrant and nonimmigrant visa applicants 
may upload digital photographs electronically as part of the online 
visa application process in lieu of submitting ink-signed photographs. 
The electronic signature on the DS-160, Online Nonimmigrant Visa 
Application, or the biometric signature for the DS-260, Online 
Application for Immigrant Visa and Alien Registration, pursuant to 22 
CFR 41.103(a) or 42.67(a)(3) respectively, shall be considered as 
signing the digital photograph and any paper photographs that may be 
otherwise submitted. Additionally, this rule amends the language 
concerning the nonimmigrant photograph to clarify that the submitted 
photograph must meet the specifications prescribed by the Department 
and deletes language allowing immigrant visa applicants to submit black 
and white photographs.

Why is the Department promulgating this rule?

    Section 221(b) of the Immigration and Nationality Act, 8 U.S.C. 
1201(b), states that ``[e]ach alien who applies for a visa shall be 
registered in connection with his application, and shall furnish copies 
of his photograph signed by him for such use as may be by regulations 
required.'' 22 CFR 41.103(a)(1) requires every noncitizen seeking a 
nonimmigrant visa to make an electronic application on Form DS-160, the 
Online Nonimmigrant Visa Application, or, as directed by a consular 
officer, an application on Form DS-156, Nonimmigrant Visa Application. 
Applicants must sign the Form DS-160 electronically by clicking the box 
designated ``Sign Application'' in the certification section of the 
application. The Form DS-160 is the electronic version of the 
nonimmigrant visa application, while the Form DS-156 is the paper-based 
nonimmigrant visa application and can only be used in limited 
circumstances.

[[Page 13695]]

    Generally, immigrant visa applicants must make an electronic 
application on Form DS-260, the Online Application for Immigrant Visa 
and Alien Registration, or, as directed by the consular officer, an 
application on Form DS-230, Application for Immigrant Visa or Alien 
Registration. Applicants must sign the Form DS-260 electronically by 
clicking the box designated ``Sign Application'' in the certification 
section of the application. Additionally, an immigrant visa applicant 
submitting a Form DS-260 is required at the time of the interview to 
swear to or affirm the application and biometrically sign the 
application.
    The purpose of this rule is to remove an outdated sentence from 22 
CFR 41.105(a)(3), which requires nonimmigrant visa applicants to ``sign 
(full name) on the reverse side of the photographs'' and to clarify 
that electronic and/or biometric signature of the appropriate visa 
application is deemed the signature on all submitted photographs, 
either digitally or on paper. In the late 1990s, the Department began 
the modernization of its visa adjudication and issuance systems and 
procedures. Part of that initiative involved digitizing the photograph 
collection process. During this time, the consular officers began to 
scan the paper photographs provided by nonimmigrant visa applicants and 
return the photographs to the applicant, using the scanned copy for all 
adjudication and recordkeeping purposes. In 2010, the Department 
announced that it would be transitioning from a paper-based application 
process to an electronic/online application process. As a part of this 
transition, the Department also transitioned to a combination of 
electronic signature (``click and submit'' signature) and biometric 
signature as well as online digital photograph collection. The digital 
photograph was rolled out slowly, with some posts adopting digital 
photograph collection simultaneously with the online application, while 
some posts delayed the digital photograph collection until their 
applicant pool adjusted to the online application procedure. As of 
2021, nearly all posts use the digital photo collection tool as part of 
the online nonimmigrant visa application process. Digital photo 
collection reduces administrative burdens on consular posts, which 
otherwise would have to scan physical photographs for hundreds to 
thousands of visa applicants each day, and on applicants who no longer 
need to provide physical copies of their photographs. In cases where an 
applicant is unable to upload a photo that meets the specific 
requirements, the applicant may submit a printed photo to the U.S. 
embassy or consulate where they are applying for a visa. Under the 
Modernized Immigrant Visa (MIV) processing, applicants can upload a 
photograph as part of the required documentation along with the DS-260. 
For non-MIV paper-based immigrant visa cases, applicants may still 
bring a paper photograph at the time of interview which is then scanned 
and uploaded. Immigrant visa applicants may also be required to supply 
additional photographs at the time of their interview; those 
photographs may be included in the paper-based immigrant visa packet 
that the individual carries with them when they travel to the United 
States. The applicants then hand the completed packets to the 
Department of Homeland Security. MIV cases do not require paper packets 
and are digitally processed.
    Under existing Department practice, submission of a digital 
photograph along with an online visa application that the applicant 
signs electronically or biometrically is sufficient to meet the 
requirement of furnishing signed photographs under INA section 221(b), 
8 U.S.C. 1201(b). This rule would not change current practice, but only 
clarify the regulation to reflect this option.
    Additionally, the Department is revising the immigrant and 
nonimmigrant visa photograph rules for consistency. Longstanding 
practice for digital and paper photographs is consistent for both 
immigrant and nonimmigrant applicants but regulations are inconsistent 
as to technical requirements. To clarify this potential inconsistency 
and to ensure that the Department can readily collect photographs that 
reflect current best practices, the Department is revising nonimmigrant 
requirements to be consistent with the immigrant requirements. The 
Department is also deleting from the immigrant visa photo rule language 
that allowed for the submission of black and white photographs. That 
language is outdated, and the Department is not aware of any country 
where the submission of color photographs is unavailable.

Regulatory Findings

Administrative Procedure Act

    This rule is issued without prior notice and comment pursuant to 
the Administrative Procedure Act (``APA''), 5 U.S.C. 553(b)(A), because 
it re-states existing agency procedure or practice. As noted in the 
Preamble, under existing Department practice, submission of a digital 
photograph, along with an online visa application that the applicant 
signs electronically, is already considered sufficient to meet the 
requirement of furnishing signed photographs under INA section 221(b), 
8 U.S.C. 1201(b). The purpose of this rule is to align the regulatory 
text with this existing Department practice and interpretation of 8 
U.S.C. 1201(b). Therefore, the Department is issuing this amendment as 
a final rule. In accordance with the APA, it is effective 30 days after 
publication.

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.

Unfunded Mandates Act of 1995

    This rule will not result in the expenditure by State, local, and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any year and it will not significantly or uniquely 
affect small governments. Therefore, no actions were deemed necessary 
under the provisions of the Unfunded Mandates Reform Act of 1995.

Congressional Review Act of 1996

    This rule is not a major rule as defined by 5 U.S.C. 804(2), for 
purposes of congressional review of agency rulemaking under the 
Congressional Review Act. At this time, the Department does not believe 
that this rule will 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 U.S.-based companies to compete with 
foreign-based companies in domestic and import markets.

Executive Orders 12866, and 13563: Reducing Regulation and Controlling 
Regulatory Cost

    The Department has reviewed this rule to ensure its consistency 
with the regulatory philosophy and principles set forth in Executive 
Orders 12866 and 13563, and has determined that the benefits of this 
regulation, i.e., updating these rules to account for modern 
technological advancements, outweigh any cost, which the Department 
assesses to be minimal.

[[Page 13696]]

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 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 preempt tribal law. 
Accordingly, the requirements of section 5 of Executive Order 13175 do 
not apply to this rulemaking.

Paperwork Reduction Act

    This rule does not impose or revise any reporting or record-keeping 
requirements under the provisions of the Paperwork Reduction Act, 44 
U.S.C. Chapter 35.

List of Subjects

22 CFR Part 41

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

22 CFR Part 42

    Aliens, Immigration and Visas.

    Accordingly, for the reasons stated in the preamble, 22 CFR parts 
41 and 42 are 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. 1182(d); 8 
U.S.C. 1185 note (section 7209 of Pub. L. 108-458, as amended by 
section 546 of Pub. L. 109-295); 112 Stat. 2681-795.


0
2. Amend Sec.  41.105 by revising paragraph (a)(3) to read as follows:
    (a) Sec.  41.105 Supporting documents and fingerprinting.* * *
    (3) Photographs required. Every applicant for a nonimmigrant visa 
must furnish photographs of the number and specification prescribed by 
the Department. The applicant must either upload a digital photograph 
electronically as part of submitting an online visa application or 
submit a paper photograph at the direction of the Department or 
consular officer. The photograph shall be considered signed when the 
applicant signs the appropriate application form pursuant to Sec.  
41.103(b)(3).
* * * * *

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

0
3. The authority citation for part 42 continues to read as follows:

    Authority:  8 U.S.C. 1104 and 1182; Pub. L. 105-277, 112 Stat. 
2681; Pub. L. 108-449, 118 Stat. 3469; The Convention on Protection 
of Children and Co-operation in Respect of Intercountry Adoption 
(done at the Hague, May 29, 1993), S. Treaty Doc. 105-51 (1998), 
1870 U.N.T.S. 167 (Reg. No. 31922 (1993)); 42 U.S.C. 14901-14954 
(Pub. L. 106-279, 114 Stat. 825); 8 U.S.C. 1101 (Pub. L. 111-287, 
124 Stat. 3058); 8 U.S.C. 1154 (Pub. L. 109-162, 119 Stat. 2960); 8 
U.S.C. 1201 (Pub. L. 114-70, 129 Stat. 561).


0
4. Amend Sec.  42.65 by revising paragraph (f) to read as follows:


Sec.  42.65  Supporting documents.

* * * * *
    (f) Photographs. Every applicant shall furnish photographs of the 
number and specifications prescribed by the Department. The applicant 
must either upload a digital photograph electronically as part of 
submitting an online visa application, or a paper photograph at the 
direction of the Department. The photograph shall be considered signed 
when the applicant biometrically signs and executes the application 
under oath pursuant to Sec.  42.67(a).

Zachary Parker,
Director, Office of Directives Management, Department of State.
[FR Doc. 2023-04405 Filed 3-3-23; 8:45 am]
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