[Federal Register Volume 88, Number 105 (Thursday, June 1, 2023)]
[Rules and Regulations]
[Pages 35738-35741]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-11602]


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DEPARTMENT OF STATE

22 CFR Parts 22 and 42

[Public Notice: 12017]
RIN 1400-AF60


Visas: Immigrant Visas; Certain Afghan Applicants

AGENCY: Department of State.

ACTION: Temporary final rule.

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SUMMARY: This final rule (TFR) temporarily amends Department of State 
(Department) regulations to provide that Afghan nationals applying for 
an immigrant visa as an immediate relative as defined in the INA or in 
a family preference immigrant visas category are exempt from the 
requirement to pay an immigrant visa (IV) application processing fee 
and a domestic Affidavit of Support review fee.

DATES: This rule is effective June 1, 2023, until December 31, 2024.

FOR FURTHER INFORMATION CONTACT: Andrea Lage, Acting Senior Regulatory 
Coordinator, Visa Services, Bureau of Consular Affairs, Department of 
State; telephone (202) 485-7586, [email protected].

SUPPLEMENTARY INFORMATION: 

I. What changes to 22 CFR 22.1 and 42.71 does this TFR make?

    The Department is temporarily amending 22 CFR 22.1 and 42.71 to 
exempt Afghan nationals from the requirement to pay the IV application 
processing and domestic Affidavit of Support review fees if they are 
applying for an IV as an immediate relative as defined in section 
201(b)(2)(A)(i) of the Immigration and Nationality Act (INA), 8 U.S.C. 
1151(b)(2)(A)(i) or in a family preference IV category as provided in 
section 203(a) of the Immigration and Nationality Act (INA), 8 U.S.C. 
1153(a).

II. Why is the Department making these changes?

    Since the fall of the Afghan government in August 2021, the United 
States has welcomed more than 88,000 Afghans through Operation Allies 
Welcome (OAW), an all-of-government effort to relocate to the United 
States citizens and lawful permanent residents who wished to leave 
Afghanistan, along with special immigrant visa (SIV) applicants, 
immediate family members of SIV applicants, and other Afghans at risk. 
Many additional Afghans who did not relocate to the United States 
through OAW but who qualify for an IV as an immediate relative or in a 
family preference IV category because they have qualifying 
relationships with a U.S. citizen or U.S. lawful permanent resident and 
seek to immigrate to the United States.
    On August 31, 2021, the U.S. Embassy in Kabul, Afghanistan 
suspended operations indefinitely.\1\ Since that time, the Department 
has continued its efforts to assist U.S. citizens, lawful permanent 
residents, and other Afghans at risk through its Office of the 
Coordinator for Afghan Relocation Efforts. In the absence of regular 
consular operations in Afghanistan, Afghans applying for an immigrant 
visa must apply and personally appear at a U.S. Embassy or consulate in 
another country.
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    \1\ Security Message: Suspension of Operations, https://af.usembassy.gov/security-message-suspension-of-operations/ (August 
31, 2021).
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    Under section 222(a) of the INA, 8 U.S.C. 1152(a), every noncitizen 
applying for an immigrant visa is required to submit an application in 
the form and manner and at such place as

[[Page 35739]]

prescribed by regulation. In accordance with the Department's 
regulations, an individual applying for an immigrant visa must pay the 
fee prescribed by the Secretary of State for the processing of 
immigrant visa applications, subject to limited, enumerated exceptions. 
22 CFR 42.71; see also 22 CFR 22.1. Immigrant visa application 
processing fees are listed in Item 32 within the Department's Schedule 
of Fees for Consular Services (``Schedule of Fees''), published at 22 
CFR 22.1. The immigrant visa application processing fee for an 
individual applying as an immediate relative or for a visa in a family 
preference IV category is $325.
    Section 212(a)(4)(C)(ii) of the INA, 8 U.S.C. 1182(a)(4)(C)(ii), 
provides that the person petitioning for an applicant's admission, and 
any additional or alternative sponsor, as appropriate, must execute an 
affidavit of support (Form I-864) as described in section 213A of the 
INA, 8 U.S.C. 1183a. The National Visa Center reviews, for clerical 
completeness, Form I-864 and related documents for applicants who are 
the beneficiary of a Form I-130, Petition for Alien Relative, submitted 
to USCIS. The Department charges a fee for Affidavit of Support review 
when the affidavit is reviewed domestically. The current domestic 
Affidavit of Support review fee is $120.
    This temporary final rule will provide for fee exemptions to 
qualified applicants through December 31, 2024, and is designed to help 
Afghan nationals resettle and, in many cases, reunite with family 
members in the United States. These exemptions reflect the Department's 
ongoing commitment to resettle Afghan nationals at risk due to the fall 
of the Afghan government, as they will facilitate the reunification of 
Afghans with their qualifying family members in the United States. 
These fee exemptions are not retroactive.
    The Department is publishing this rule as a temporary final rule, 
which will automatically expire on December 31, 2024. The Department 
anticipates that this duration is a sufficient time period for Afghan 
nationals who are at risk and who wish to immigrate to the United 
States to benefit from the fee relief. This rule applies to 
applications dated after the effective date of this rulemaking.

III. Regulatory Findings

A. Administrative Procedure Act

    As this rule involves a foreign affairs function of the United 
States, it is excepted from both the delayed effective date and notice 
and comment requirements of 5 U.S.C. 553(a)(1).
    Under 5 U.S.C. 553(a)(1), notice-and-comment requirements of the 
Administrative Procedure Act do not apply ``to the extent there is 
involved . . . a military or foreign affairs function of the United 
States.'' This exemption applies when the rule in question ``is clearly 
and directly involved in a foreign affairs function.'' Mast Indus. v. 
Regan, 596 F. Supp. 1567, 1582 (C.I.T. 1984) (quotation marks omitted). 
In addition, although the text of the Administrative Procedure Act does 
not require an agency invoking this exemption to show that such 
procedures may result in ``definitely undesirable international 
consequences,'' some courts have required such a showing. E.g., Yassini 
v. Crosland, 618 F.2d 1356, 1360 n.4 (9th Cir. 1980). This rule 
satisfies both standards.
    This rulemaking to exempt Afghan nationals from certain IV fees 
clearly and directly involves foreign affairs, as the U.S. government's 
commitment and efforts in furtherance of Operation Allies Welcome, 
Enduring Welcome, and successor operations to relocate and resettle 
Afghans who have provided valuable assistance to the U.S. government 
over the past two decades, and their family members, reflects one of 
the U.S. government's most significant foreign policy goals in recent 
years. These measures specifically will significantly ease the 
financial burden of Afghan applicants seeking to join U.S. citizen or 
lawful permanent resident family members in the United States, clearly 
and directly reflecting U.S. foreign policy as the Department seeks to 
uphold its commitments to assist many Afghans and their family members 
who have assisted the U.S. government. Visa applicants from Afghanistan 
are currently unable to apply in their home country due to the 
suspension of operations of the U.S. Embassy in Kabul, and must travel 
to other locations, often at their own cost and risk. For such 
individuals, particularly those of whom are applying for immediate 
relative and family preference immigrant visas, the payment of visa 
processing fees and fees for domestic processing of the Affidavit of 
Support, are significant, with each applicant paying $445 in immigrant 
visa processing fees alone, in addition to other associated required 
fees not addressed by this rulemaking, including for example the cost 
of a required medical examination and travel expenses to the United 
States. These significant costs can serve as a barrier to applicants 
completing their applications and being able to travel to the United 
States to reunite with family members, and consequently, this 
rulemaking to exempt such applicants from certain fees clearly and 
directly involves a foreign affairs function.
    Similarly, solicitation of public notice and comment to this 
foreign policy exercise would have definitely undesirable international 
consequences. Foreign governments or parts thereof may have interests 
in this rule as a matter of their foreign policy goals with respect to 
U.S. efforts to relocate and resettle Afghan Allies and other Afghans 
at risk, many of whom must transit and complete visa processing in 
third countries in order to immigrate to the United States. Foreign 
governments or entities, including entities that oppose U.S. 
objectives, may seek to disrupt and potentially harm the bilateral 
relationships between the U.S. and such countries through participation 
in the notice and comment process. As a DOJ representative stated 
during hearings on the Administrative Procedure Act, ``[a] requirement 
of public participation in . . . promulgation of rules to govern our 
relationships with other nations . . . would encourage public 
demonstrations by extremist factions which might embarrass foreign 
officials and seriously prejudice our conduct of foreign affairs.'' 
Administrative Procedure Act: Hearings on S. 1663 Before the Subcomm. 
on Admin. Practice & Procedure of the S. Comm. on the Judiciary, 88th 
Cong. at 363 (1964). The time necessary to solicit and respond to 
public comments on the rule would further delay State's ability to 
exempt these individuals from immigrant visa fees, significantly 
hampering State's ability to advance the described foreign policy 
objectives of upholding the U.S. government's commitment to the Afghan 
people.

B. Regulatory Flexibility Act/Executive Order 13272: Small Business

    The Regulatory Flexibility Act, 5 U.S.C. 601 et seq., requires 
agencies to perform an analysis of the potential impact of regulations 
on small business entities when regulations are subject to the notice 
and comment procedures of the APA. As this TFR is not required to be 
published for notice and comment under 5 U.S.C. 553, it is exempt from 
the Regulatory Flexibility Act (5 U.S.C. 603 and 604). Nonetheless, as 
this action only directly impacts a small subset of immigrant visa 
applicants, the Department certifies that this rule will not have a 
significant economic impact on a substantial number of small entities.

[[Page 35740]]

C. Congressional Review Act of 1996

    In the Department's view, this TFR is not a major rule as defined 
in 5 U.S.C. 804. This TFR 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.

D. Paperwork Reduction Act

    This TFR does not impose any new reporting or record-keeping 
requirements subject to the Paperwork Reduction Act, 44 U.S.C. 35.

E. Executive Order 12866

    The Department has reviewed this TFR to ensure its consistency with 
the regulatory philosophy and principles set forth in Executive Order 
12866. This rule will temporarily exempt certain Afghan applicants from 
the payment of the IV application processing and domestic Affidavit of 
Support review fees. There are no anticipated costs to the public 
associated with this rule. The Office of Information and Regulatory 
Affairs has designated this rule as non-significant.

F. Executive Order 13175

    The Department has determined 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.

G. Executive Order 13563

    Executive Order 13563 directs 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, 
distributed impacts, and equity effects). The Department has reviewed 
the TFR under Executive Order 13563 and has determined that this 
rulemaking is consistent with the guidance therein.

H. Other

    The Department has also considered this TFR in light of the 
Unfunded Mandates Reform Act of 1995 and Executive Orders 12372, 13132, 
and 13272; and affirms this rule is consistent with the applicable 
mandates or guidance therein.

List of Subjects

22 CFR Part 22

    Fees; Foreign Service; Immigration; Passports and visas.

22 CFR Part 42

    Administrative practice and procedure; Aliens; Fees; Foreign 
officials; Immigration; Passports and visas.

    Accordingly, for the reasons stated in the preamble, and under the 
authority 8 U.S.C. 1104 and 22 U.S.C. 2651(a), 22 CFR parts 22 and 42 
are amended as follows:

PART 22--SCHEDULE OF FEES FOR CONSULAR SERVICES--DEPARTMENT OF 
STATE AND FOREIGN SERVICE

0
1. The authority citation for part 22 continues to read as follows:

    Authority:  8 U.S.C. 1101 note, 1153 note, 1157 note, 1183a 
note, 1184(c)(12), 1201(c), 1351, 1351 note, 1713, 1714, 1714 note; 
10 U.S.C. 2602(c); 22 U.S.C. 214, 214 note, 1475e, 2504(h), 2651a, 
4206, 4215, 4219, 6551; 31 U.S.C. 9701; E.O. 10718, 22 FR 4632, 3 
CFR, 1954-1958 Comp., p. 382; E.O. 11295, 31 FR 10603, 3 CFR, 1966-
1970 Comp., p. 570.


0
2. Effective June 1, 2023, through December 31, 2024, Sec.  22.1 is 
amended by adding Item 32(g) and Item 34(b) to the table to read as 
follows:


Sec.  22.1  Schedule of fees.

* * * * *

                 Schedule of Fees for Consular Services
------------------------------------------------------------------------
                   Item No.                               Fee
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                              * * * * * * *
32. Immigrant Visa Application Processing Fee
 (per person):
 
                              * * * * * * *
    (g) Afghan immediate relative and family   NO FEE.
     preference visa applications.
 
                              * * * * * * *
34. Affidavit of Support Review (only when     $120.
 reviewed domestically).
 
                              * * * * * * *
(b) Afghan immediate relative and family       NO FEE.
 preference visa applications.
 
                              * * * * * * *
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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. Effective June 1, 2023, through December 31, 2024, Sec.  42.71 is 
amended by adding paragraph (b)(4) to read as follows:


Sec.  42.71  Authority to issue visas; visa fees.

* * * * *
    (b) * * *
    (4) Exemption from fees for Afghan immediate relative and family 
preference immigrant visa applicants. Consular officers shall exempt 
from immigrant visa fees Afghan applicants

[[Page 35741]]

for immediate relative and family preference immigrant visas.

Hugo Rodriguez,
Principal Assistant Secretary for Consular Affairs, Department of 
State.
[FR Doc. 2023-11602 Filed 5-31-23; 8:45 am]
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