[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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