[Federal Register Volume 88, Number 234 (Thursday, December 7, 2023)]
[Rules and Regulations]
[Pages 85109-85110]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-26907]


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DEPARTMENT OF STATE

22 CFR Part 42

[Public Notice: 12224]
RIN 1400-AE83


Immigrant Visas

AGENCY: Department of State.

ACTION: Final rule.

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SUMMARY: The Department of State (``Department'') is amending 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 potential qualification for a visa without a formal 
visa application. Assessing eligibility for an immigrant visa is now a 
more complex task and not one which can be accomplished accurately with 
an informal evaluation.

DATES: This final rule is effective on January 8, 2024.

FOR FURTHER INFORMATION CONTACT: Claire Kelly, Office of Visa Services, 
Bureau of Consular Affairs, Department of State; telephone (202) 485-
7586, [email protected].

SUPPLEMENTARY INFORMATION: The Department published a notice of 
proposed rulemaking, Public Notice 11604 at 88 FR 16384 (Mar. 17, 2023) 
(hereafter ``proposed rule''), with a request for comments, proposing 
to amend Part 42 of Title 22 of the Code of Federal Regulations. The 
rule will eliminate 22 CFR 42.68 in its entirety. The regulatory 
amendment was discussed in detail in the proposed rule, and that 
discussion is adopted by reference in this final rule. The Department 
received two responsive comments, both in support of eliminating 22 CFR 
42.68. The Department is now promulgating a final rule with no changes 
from the proposed rule. This rule results in no change for applicants, 
as the authority granted by 22 CFR 42.68 was no longer used by consular 
officers.\1\
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    \1\ See the proposed rule for further discussion.
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Analysis of Comments

    The proposed rule was published in the Federal Register on March 
17, 2023. The comment period closed May 16, 2023. The Department 
received two responsive comments, both in favor of the proposed 
elimination of 22 CFR 42.68, and one non-responsive comment.
    One of the two responsive comments advocated for replacing 22 CFR 
42.68 with ``supportive and accessible eligibility screenings for 
noncitizens seeking visas,'' while the other comment only expressed its 
support for the proposed elimination. The Department has considered 
these comments. Considering the complexity required to evaluate a 
noncitizen's eligibility for a visa, and limited resources to reliably 
assess eligibility absent a visa application, the Department is unable 
to offer any eligibility screenings. Noncitizens who wish to receive a 
nonimmigrant or immigrant visa must formally apply for a visa to allow 
a consular officer to assess their eligibility for the visa.

Regulatory Findings

A. Administrative Procedure Act

    As this rule involves amending visa policy, which is a foreign 
affairs function of the United States, it is exempt from both the 
delayed effective date and notice and comment requirements of 5 U.S.C. 
553 per subsection (a)(1). Notwithstanding the applicability of the 
foreign affairs exception to this rule, the Department, for its own 
benefit, sought public comment on the proposed elimination of 22 CFR 
42.68. See, e.g., Hoctor v. U.S. Dep't of Agric., 82 F.3d 165, 171-72 
(7th Cir. 1996) (observing that there is nothing in the APA that 
forbids an agency's use of notice-and-comment procedures even if not 
required under the APA, and that courts should attach no weight to an 
agency's varied approaches involving similar rules). Though this rule 
is not subject to 5 U.S.C. 553(d), the Department is also choosing to 
delay the effective date of this rule for 30 days.

B. Regulatory Flexibility Act

    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

[[Page 85110]]

Flexibility Act. Nonetheless, as this rule eliminates a currently 
unused authority, the Department certifies that this rule will not have 
a significant economic impact on a substantial number of small 
entities.

C. Congressional Review Act

    This rule is not a major rule as defined by the Congressional 
Review Act (5 U.S.C. 801 et seq.). 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 significant adverse effects on competition, 
employment, investment, productivity, innovation, or on the ability of 
United States-based companies to compete with foreign-based companies 
in domestic and import markets.

D. Executive Orders 12866, 13563, and 14094

    Notwithstanding that the policies of the Secretary of State in 
exercising their authority to conduct international affairs through the 
granting or refusal of visas to foreign nationals is a foreign affairs 
function, the Department has submitted this rule to OIRA for review and 
OIRA has deemed this rule to be not significant. The Department has 
also considered this final rule in light of E.O. 13563 and E.O. 14094 
and affirms that this rule is consistent with the guidance therein.
    As noted in the NPRM, 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.

E. Executive Order 13175

    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 Executive Order 13175 do not apply to 
this rulemaking.

F. 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.

G. Other

    The Department has also considered this rule under 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 in 22 CFR Part 42

    Immigration, Passports, Visas.

    Accordingly, for the reasons set forth in the preamble, 22 CFR 42 
is amended 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 M. Stufft,
Deputy Assistant Secretary for Visa Services, Consular Affairs, 
Department of State.
[FR Doc. 2023-26907 Filed 12-6-23; 8:45 am]
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