[Federal Register Volume 88, Number 52 (Friday, March 17, 2023)]
[Proposed Rules]
[Pages 16384-16386]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-05410]


 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
 
 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
 ========================================================================
 

  Federal Register / Vol. 88, No. 52 / Friday, March 17, 2023 / 
Proposed Rules  

[[Page 16384]]



DEPARTMENT OF STATE

22 CFR Part 42

[Public Notice: 11604]
RIN 1400-AE83


Visas: Immigrant Visas

AGENCY: Department of State.

ACTION: Proposed rule.

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

SUMMARY: The Department of State (``Department'') proposes to amend its 
regulation governing immigrant visas by removing the section which 
allows a consular officer to conduct an informal evaluation of the 
family members of an immigrant visa applicant to identify potential 
grounds of ineligibility. The existing regulation was promulgated in 
1952, at a time when a consular officer could more readily assess a 
family member's qualification for a visa. Assessing eligibility for an 
immigrant visa is now a complex task, and not one which can be 
accomplished accurately with an informal evaluation.

DATES: Written comments must be received on or before May 16, 2023.

ADDRESSES: Interested parties may submit comments to the Department by 
any of the following methods:
     Internet (preferred): At www.regulations.gov, you can 
search for the document using Docket Number DOS-2022-0046 or RIN 1400-
AE83.
     Email: Claire Kelly, Office of Visa Services, Bureau of 
Consular Affairs, U.S. Department of State, [email protected].

Public Participation

    All interested parties are invited to participate in this 
rulemaking by submitting written views and comments on all aspects of 
this proposed rule. Comments must be submitted in English or an English 
translation must be provided. Comments that will provide the most 
assistance to the Department of State in implementing this change will 
reference a specific portion of the proposed rule, explain the reason 
for any recommended change, and include information that supports the 
recommendation.
    Instructions: If you submit a comment, you must include the agency 
name and RIN 1400-AE83 for this proposed rulemaking in the title or 
body of the comment. Regardless of the method used for submitting 
comments or material, all submissions will be posted, without change, 
to the Federal eRulemaking Portal at http://www.regulations.gov, and 
will include any personal information you provide. Therefore, because 
all submissions will be public, you may wish to consider limiting the 
amount of personal information that you provide in any voluntary public 
comment submission. The Department of State may withhold from public 
viewing information provided in comments that it determines may 
infringe privacy rights of an individual or is offensive. For 
additional information, please read the Privacy Act notice available in 
the footer at https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Claire Kelly, Office of Visa Services, 
Bureau of Consular Affairs, Department of State, 600 19th St. NW, 
Washington, DC 20006, (202) 485-7586.

SUPPLEMENTARY INFORMATION:

I. What changes to 22 CFR 42.68 does the Department propose?

    The Department proposes eliminating 22 CFR 42.68 in its entirety. 
Under 22 CFR 42.68 consular officers may, in certain circumstances, 
arrange for an informal evaluation of the family members of an 
immigrant visa applicant. Specifically, if a principal immigrant visa 
applicant will precede the family members in traveling to the United 
States, 22 CFR 42.68 allows a consular officer to arrange for an 
informal examination of the family members to make a preliminary 
determination of any ground of ineligibility on their part to receive a 
visa. Under the current regulation, the principal applicant must be 
informed of any preliminary finding of ineligibility, and a 
determination in connection with an informal examination carries no 
assurance that the individual will be eligible for an immigrant visa in 
the future.

II. Why is the Department proposing this rule?

A. Increasing Complexity in Evaluating Immigrant Visa Applicants Makes 
Informal Evaluation an Inappropriate Use of Resources

    The regulation, 22 CFR 42.68, was among the regulations promulgated 
by the Department in 1952 after the enactment of the Immigration and 
Nationality Act. Since 1952, however, the immigrant visa process 
generally and the scope of grounds on which an applicant may be 
ineligible for an immigrant visa has grown increasingly more complex, 
rendering the concept of an informal evaluation as outdated and 
impractical for a consular officer to complete with accuracy.
    In 1952, a noncitizen wishing to immigrate completed Form FS-256a, 
and a consular officer then assessed their eligibility during an 
interview. This simple form requested basic biographical information 
and included a statement affirming that the noncitizen was not 
inadmissible. Since 1952, Congress has enacted numerous laws imposing 
new immigration ineligibilities.\1\ Today, a noncitizen applying for an 
immigrant visa completes form DS-260, submits biometrics and supporting 
documents, including police certificates and the results of a medical 
examination, and the consular officer interviews the applicant and vets 
the applicant through a series of electronic national security and 
criminal vetting systems to identify potential grounds of 
ineligibility.\2\ The results of these vetting measures are one of the 
central factors upon which a consular officer relies to determine 
whether the applicant is ineligible for a visa. Without a complete 
application for a visa with the required supporting documents, the 
Department lacks sufficient information for a thorough assessment of 
potential ineligibilities that would make an informal evaluation 
useful.
---------------------------------------------------------------------------

    \1\ See, for example, the Immigration Reform and Control Act 
(IRCA) (100 Stat. 3359); the 1990 Immigration Act (104 Stat. 4978); 
the Illegal Immigration Reform and Immigrant Responsibility Act 
(IIRIRA) (110 Stat. 3009).
    \2\ Consistent with the Enhanced Border Security and Visa Entry 
Reform Act (EBSVERA) (116 Stat. 543).
---------------------------------------------------------------------------

    The informal evaluation that was created in 1952 does not provide a 
complete picture of an individual's

[[Page 16385]]

eligibility for a visa. Evolving national security priorities, 
particularly since September 11, 2001, have resulted in significant 
modifications to the visa screening enterprise. The current enterprise 
includes numerous concurrent interagency reviews for potential 
derogatory information of both principal and derivative immigrant visa 
applicants. Given the broad range of potential ineligibilities, and the 
layered vetting processes in which applicants are reviewed, a consular 
officer cannot at the time of the informal evaluation make an accurate 
assessment as to the noncitizen's eligibility for a visa and 
consequently cannot fully advise a principal applicant on the 
eligibility of their family members.
    If the Department were to update the informal evaluation process to 
provide a more informed and thorough review of a principal applicant's 
family members, such that a consular officer could provide an accurate 
preliminary assessment of visa eligibility, such changes would require 
reallocation of already limited resources of both the Department and 
other agencies to review applicants who have not--and potentially will 
not--apply for a visa, potentially requiring significant changes to 
Department systems that facilitate vetting of applicants based only on 
their submission of a completed visa application. Moreover, even with a 
comprehensive slate of information regarding a visa applicant, an 
assessment of eligibility can only account for their potential 
eligibility at that time, and is not a reliable indicator of whether 
they would be eligible in the future if and when they submit a visa 
application. Consequently, an informal evaluation is an inefficient use 
of State resources, and an unreliable tool for prospective applicants.
    The authority provided for in 22 CFR 42.68 has not been used in 
recent years. Given the difficulty in accurately predicting an 
applicant's visa eligibility through an informal process, the 
Department is unable to allocate its limited resources toward offering 
a service that has been rendered obsolete.

B. Current Application of 22 CFR 42.68

    To determine whether and how often the informal evaluation 
authority has been used, the Visa Office consulted with management in 
the immigrant visa units of five of the largest-volume immigrant visa 
processing posts: Ciudad Juarez, Manila, Santo Domingo, Mumbai, and 
Dhaka. Each of the five posts reported they have no record of ever 
providing this service. Given that these five posts process 32 percent 
of the immigrant visas worldwide, and they have no recent information 
regarding this service, we are confident that eliminating this service 
will not cause undue hardship to applicants or result in significant 
impacts to applicants.
    In light of the complexity required to evaluate a noncitizen's 
eligibility for an immigrant visa, and limited resources to reliably 
assess eligibility absent a visa application, the Department seeks to 
eliminate this regulation.

III. Regulatory Findings

Administrative Procedure Act

    This proposed rule involves the Department amending visa policy, 
which is a foreign affairs function of the United States and, 
therefore, in accordance with 5 U.S.C. 553(a)(1), would be exempt from 
the notice and comment requirements of 5 U.S.C. 553. Notwithstanding 
the applicability of the foreign affairs exception to this rule, the 
Department is providing 60 days for public comment on this proposed 
rule's elimination of 22 CFR 42.68.

Regulatory Flexibility Act/Executive Order 13272 (Small Business)

    As this rulemaking is not required to be published for notice and 
comment 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 rulemaking will not have a significant economic 
impact on a substantial number of small entities.

Unfunded Mandates Reform Act of 1995

    Section 202 of the Unfunded Mandates Reform Act of 1995 (UFMA), 
Pub. L. 104-4, 109 Stat. 48, 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 section. This proposed rule will not 
result in any such expenditure, nor will it significantly or uniquely 
affect small governments.

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

    Executive Orders (E.O.) 12866 and 13563 direct agencies to assess 
the 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, distributive impacts, and equity). The 
Department reviewed this proposal to ensure consistency with those 
requirements. OMB reviewed this proposed rule and designated as a 
``significant regulatory action'' under section 3(f) of E.O. 12866. 
Accordingly, OMB has reviewed this proposed regulation.
    As noted above, the Visa Office consulted with management in the 
immigrant visa units of five of the largest-volume immigrant visa 
processing posts: Ciudad Juarez, Manila, Santo Domingo, Mumbai, and 
Dhaka. Each of the five posts reported they do not provide this 
service. Given that these five posts process 32 percent of the 
immigrant visas worldwide, and they have no information regarding the 
provision of this service, we are confident that eliminating this 
regulation will not result in significant impacts.
    The Department has also considered this proposed rule in light of 
Executive Order 13563 and affirms that this proposed rule is consistent 
with the guidance therein.

Executive Orders 12372 and 13132 (Federalism)

    This proposed rule 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. Nor will the proposed rule have 
federalism implications warranting the application of Executive Orders 
No. 12372 and No. 13132.

Executive Order 12988 (Civil Justice Reform)

    The Department has reviewed the proposed rule in light of sections 
3(a) and 3(b)(2) of Executive Order No. 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 proposed rule 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 Executive Order 13175 do not apply to 
this proposal.

Paperwork Reduction Act

    This proposed rule does not impose any new reporting or 
recordkeeping requirements subject to the Paperwork Reduction Act, 44 
U.S.C. chapter 35.

[[Page 16386]]

List of Subjects in 22 CFR Part 42

    Immigration, Passports and visas.

    For the reasons stated in the preamble, the Department proposes to 
amend 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 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).


Sec.  42.68   [Removed and reserved]

0
2. Remove and reserve Sec.  42.68.

Julie Stufft,
Deputy Assistant Secretary for Visa Services, Consular Affairs, 
Department of State.
[FR Doc. 2023-05410 Filed 3-16-23; 8:45 am]
BILLING CODE 4710-06-P