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Visas: Documentation of Immigrants Under the Immigration and Nationality Act, as Amended-Diversity Visas

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Interim rule with request for comments.


This interim rule makes certain amendments to the regulations implementing the Diversity Visa (DV) Program. The amendments are necessary to further clarify statutory requirements and to enhance the Department's ability to combat fraudulent practices in the DV Program. The Department is also amending the regulations to further clarify the definition of “high school education or its equivalent,” to eliminate the use of the Dictionary of Occupational Titles as a means to determine the applicant's work experience, and to define further acceptable photographs.


Effective Date: This rule takes effect on September 9, 2002.

Comment Date: Please submit written comments no later than September 9, 2002.


Interested persons are invited to submit comments in duplicate to: Chief, Office of Legislation and Regulations, Visa Office, Department of State, Washington, DC 20520-0106, by fax at (202) 663-3898, or by e-mail to

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Pam Chavez, Office of Legislation and Regulations, Visa Office, phone (202) 663-1206, or e-mail

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The DV Program is provided for in sections 201(a)(3), 201(e), 203(c) and 204(a)(1)(G) of the Immigration and Nationality Act (INA), as amended. The Department's regulations are found at 22 CFR 42.33.

How Is the Department Amending Its Regulations?

O*Net OnLine replaces “Dictionary of Occupational Titles”

The Department of Labor no longer maintains or publishes the Dictionary of Occupational Titles which has been used as a means for determining an applicant's work experience. Therefore, beginning with cases processed for the DV 2003 Program, the Department of Labor's O*Net OnLine will be the only source of information used to determine qualifying work experience. The O*Net OnLine can be accessed at

Photographs for Applicant and Dependents

The Department is also modifying its regulations regarding the photograph to be submitted. Photographs submitted for the 2004 DV Program must be between Start Printed Page 5175311/2 by 11/2 and 2 by 2 inches or (37 to 50 mm) square. Photos showing the alien with hats or head coverings are acceptable but only if they do not obscure any portion of the applicant's face.

Why Are the Regulations Being Modified?

During the processing of the immigrant visa applications of aliens selected to compete for immigrant visas in earlier years, several consular offices encountered cases in which the visa applicant was proven, or strongly suspected, to be an impostor—that is, not the individual who had submitted the petition which had been selected. Thus, in order to provide additional deterrents to such abuses, the Department is amending its regulations. Also, the Department is amending its regulation regarding the work experience requirement. Since the Department of Labor no longer maintains or publishes the Dictionary of Occupational Titles, the Department of Labor's O*Net On-Line will now be the only source of information used to determine whether an applicant meets the work experience requirement.

Interim Rule

Administrative Procedure Act

The Department's implementation of this regulation as an interim rule is based upon the “good cause” exceptions found at 5 U.S.C. 553(b)(B) and (d)(3). The publication of this rule as an interim rule will allow sufficient time for interested persons to comment on the regulatory changes and allows for timely registration for the DV-2004 Program scheduled for early October 2002.

Regulatory Flexibility Act

The Department of State, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving it, certifies that this rule will not have a significant economic impact on a substantial number of small entities.

Unfunded Mandates Reform 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.

Small Business Regulatory Enforcement Fairness Act of 1996

This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Act of 1996. 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 export markets.

Executive Order 12866

The Department of State does not consider this rule, to be a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review. Therefore, in accordance with the letter to the Department of State of February 4, 1994 from the Director of the Office of Management and Budget, it does not require review by the Office of Management and Budget.

Executive Order 13132

This regulation will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

Paperwork Reduction Act

This rule does not impose any new reporting or record-keeping requirements.

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List of Subjects in 22 CFR Part 42

  • Aliens
  • Documentation
  • Immigrants
  • Passports and visas
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Accordingly, 22 CFR part 42 is amended as follows:

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

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Authority: 8 U.S.C. 1104; 2651a.

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2. Amend § 42.33 as follows:

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a. By revising paragraphs (a)(2) and (a)(3); and

b. By revising paragraphs (b)(1)(iii), (b)(2), (b)(3), and (b)(4)(ii) to read as follows:

Diversity immigrants.
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(a) * * *

(2) Definition of high school education or its equivalent. For the purposes of this section, the phrase high school education or its equivalent shall mean successful completion of a twelve-year course of elementary and secondary education in the United States or successful completion in another country of a formal course of elementary and secondary education comparable to completion of twelve years' elementary and secondary education in the United States. In order to be considered comparable to a U.S. high school education, a foreign course of study must provide the alien with the minimum academic records required for admission to study in U.S. universities or colleges as determined in the most recent edition of the publication entitled “Foreign Credentials Required for Consideration of Admission to Universities and Colleges in the United States.

(3) Determinations of work experience. For all cases registered for the 2003 Diversity Visa Program, consular officers shall use the Department of Labor's O*Net OnLine to determine qualifying work experience.

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(b) * * *

(1) * * *

(iii) Name(s), and date(s) and place(s) of birth of spouse and all child(ren), if any, (including legally-adopted and stepchildren, regardless of whether or not they are living with the petitioner or intend to accompany or follow to join the petitioner), but excluding those children who are already U.S. citizens or LPRs); and

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(2) Signatures. The petitioner shall personally sign his or her signature on the sheet of paper, in his or her native alphabet. (Neither an initialed signature nor block printing of the petitioner's name will be accepted. The use of either will result in the disqualification of the entry).

(3) Photographs. The alien shall also affix to the entry a photograph of himself or herself and photographs of his or her spouse and all unmarried children under the age of 21 years. The photographs shall meet the following specifications:

(i) The photograph must be between 11/2 by 11/2 and 2 by 2 inches (37 to 50 mm) square;

(ii) The alien shall print his or her name and date of birth on the back of the photograph;

(iii) The alien must be directly facing the camera; the head of the person being photographed shall not be tilted up, Start Printed Page 51754down, or to the side, and must cover about 50% of the photo area;

(iv) The photograph must be taken with the person in front of a neutral, light-colored background;

(v) The alien's face must be in focus;

(vi) The person in the photograph shall not wear sunglasses or other paraphernalia which detracts from the face;

(vii) Photos with the alien wearing head coverings or hats are only acceptable due to religious beliefs, and even then, may not obscure any portion of the face of the applicant. Photos of applicants wearing tribal, military, airline or other headwear not specifically religious in nature will not be accepted;

(viii) Photographs may be either color or black and white.

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(ii) Form of mailing. Petitions for consideration under this section shall be submitted by normal surface or air mail only. Petitions submitted by hand, telegram, FAX, or by any means requiring any form of special handling or acknowledgement of receipt such as express or priority mail, second day airmail, fax, hand or messenger delivery) will not be processed. The petitioner shall type or print legibly, using the Roman alphabet, on the upper left-hand corner of the envelope in which the petition is mailed his or her full name and mailing address, and the name of the country of which the petitioner is a native, as shown on the petition itself. Envelopes shall be between 6″ and 10″ (15 cm to 25 cm) in length and between 31/2″ and 41/2″ (9 cm to 11 cm) in width. Envelopes not bearing this information and/or not conforming to the restrictions as to size shall not be processed for consideration.

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Dated: July 31, 2002.

George Lannon,

Acting Assistant Secretary for Consular Affairs, Department of State.

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[FR Doc. 02-20211 Filed 8-8-02; 8:45 am]