Department of State.
Interim rule with request for comments.
This interim rule brings Department regulations into line with, and allows further expansion of, post-9/11 policy guidance issued by the Department that has increasingly restricted the number of instances in which the interview of a nonimmigrant visa applicant may be waived. The regulation significantly reduces the number and kind of situations in which the usual requirement that a nonimmigrant visa applicant appear before an officer for a personal interview may be waived by the consular officer, while making express the Department's authority to set interview policies centrally. The Department is taking this regulatory action in order to further develop the new legal framework necessary to support a series of steps undertaken in order to more adequately ensure the security and integrity of nonimmigrant visa application and issuance procedures. Upon publication of this rule, certain visa applicants who previously may have had their personal appearance before a consular officer for the purpose of applying for a nonimmigrant visa waived will be required by regulation to make such an appearance to be interviewed. In practice, however, many of these applicants are already being interviewed, based on internal Department guidance or decisions made at consular posts.
Effective date: This rule is effective August 1, 2003.
Comment date: Written comments may be submitted within 60 days of the date of publication of this document in the Federal Register.
Written comments may be submitted, in duplicate, to the Legislation and Regulations Division, Visa Services, Department of State, Washington, DC 20520-0106, or by e-mail to firstname.lastname@example.org.Start Further Info
FOR FURTHER INFORMATION CONTACT:
Elizabeth J. Harper, Legislation and Regulations Division, Visa Services, Department of State, Washington, DC 20520-0106, (202) 663-1221.End Further Info End Preamble Start Supplemental Information
What Is the Origin of the Waiver of Appearance Rule?
The Immigration and Nationality Act, section 222(e), requires that all applicants for immigrant visas appear personally before a consular officer, but leaves the question of personal appearance of nonimmigrant visa applicants to be defined by regulation. The Department's regulations state a usual requirement of personal appearance by nonimmigrant visa applicants, but for at least forty years have defined a range of applicants whose appearance may be waived by the consular officer—i.e., granted a “personal appearance waiver” or “PAW.”
What Change Is Being Made?
Because of heightened security concerns in the period immediately following September 11, the Department undertook a thorough review of its visa application and issuance procedures. As a result of that review, consular officers have begun to interview a much larger percentage of nonimmigrant visa applicants than they did prior to September 11, both in response to Department internal guidance and as a result of decisions made at consular posts. Because of the continuing need to ensure that the visa process is focused on security concerns, the Department believes it is desirable to codify the changed practice into regulation and to provide a regulatory basis for further adjusting the interview exemptions through centralized direction, as appropriate. This rule is intended to reflect the current scope and use of consular and Departmental personal appearance waiver authority. This amended version of the regulation generally permits waivers of the interview by consular officers in significantly fewer kinds of cases than the regulation being amended. The one exception is that the regulation raises the age of children who may qualify for consular officer interview waivers from age 14 to age 16. Consular officers will no longer have broad discretion under regulation to grant PAWs with respect to applicants for B, C-1, H-1, I, J and crew visas. In certain circumstances, however, officers will have discretion to grant PAWs for applicants for any category of nonimmigrant visa who have previously been issued a visa in the same category for which they are applying. The amended regulation continues consular authority for granting PAWs to diplomats and officials of international organizations. Further, it will allow the Deputy Assistant Secretary for Visa Services to waive the personal appearance requirement in specific situations, i.e., when the Department determines, centrally, that the waiver would not be inconsistent with homeland security interests. Thus, the regulation effectively shifts to the Department authority to make a number of interview waiver decisions previously made at consular posts.
Which Applicants May Still Benefit From a Consul's Authority To Waive Personal Appearance?
Under the revised regulation, a consular officer may waive the personal appearance of a visa applicant in six specific categories. These are: (1) Children age 16 and under; (2) persons age 60 years or older; (3) most of the applicants within a class of nonimmigrants classifiable under the visa symbols A, C-2, C-3, G, or NATO (with the exception of attendants, servants and personal employees); (4) aliens applying for diplomatic or official visas, as defined in 22 CFR 41.26 and Start Printed Page 4012841.27, respectively; (5) applicants who within twelve months of the expiration of their previous visa are seeking re-issuance of a nonimmigrant visa in the same classification at the consular post of the alien's usual residence, and for whom the consular officer has no indication of any noncompliance with U.S. immigration laws and regulations, and (6) aliens for whom a waiver of personal appearance is warranted in the national interest or because of unusual circumstances, as determined by the consular officer.
Experience shows that applicants in the first and second categories pose very little if any threat to our security. Persons in the third and fourth categories, diplomats and officers or employees of international organizations and their immediate families are ordinarily very well known to embassy staff members, or there is extensive background information available concerning them. In addition, international law, comity and reciprocity with regard to official personnel may appropriately be taken into account. In the fifth category, the previous personal appearance by and interview of the applicant would make it unlikely that further appearance and interview would reveal any basis for refusal. Applicants in the sixth category, except for those cases based on medical issues, will generally be important contacts of embassy officers and therefore well known to the embassy. It is important to understand, however, that, although the consular officer has discretion to waive personal appearance for an individual falling in one of the six categories, waiver is never required.
What Other Waiver Authority May Be Exercised?
In addition to the waiver authority granted to consular officers in the six specific categories listed above, as mentioned, the Deputy Assistant Secretary for Visa Services will have the authority to waive the requirement for personal appearance for a class of individuals when the Deputy Assistant Secretary is satisfied that the waiver is in the national interest or involves unusual circumstances.
Regulatory Analysis and Notices
Administrative Procedure Act
The Department is publishing this rule as an interim rule, with a 60-day provision for post-promulgation public comments, based on the “good cause” exceptions set forth at 5 U.S.C. 553(b)(3)(B) and 553(d)(3). It is dictated by the necessity of additional controls over the documentation and entry of aliens at this time, in light of the continuing threat of terrorist attacks on the United States and, as noted, is bringing the Department's regulation into line with practices that are already generally in effect through the discretionary exercise of existing waiver authority.
Regulatory Flexibility Act
Pursuant to section 605 of the Regulatory Flexibility Act, the Department has assessed the potential impact of this rule, and the Department of State hereby certifies that it is not expected to 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 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 does not consider this rule a “significant regulatory action” under Executive Order 12866, section 3(f) Regulatory Planning and Review. Nevertheless, the Department has submitted the rule to the Office of Management and Budget for its review.
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 require consultations or warrant the preparation of a federalism summary impact statement.
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.Start List of Subjects
List of Subjects in 22 CFR Part 41End List of Subjects Start Amendment Part
Accordingly, for the reasons discussed in the preamble, Part 41 is amended as follows:End Amendment Part Start Part
PART 41—[AMENDED]End Part Start Amendment Part
1. The authority citation for part 41 continues to read:End Amendment Part Start Amendment Part
2. Revise section 41.102 to read as follows:End Amendment Part
(a) Personal appearance before a consular officer is required except as otherwise provided in this section. Except when the requirement of personal appearance has been waived pursuant to paragraph (b) or (c) of this section, each applicant for a nonimmigrant visa must personally appear before and be interviewed by a consular officer, who shall determine on the basis of the applicant's representations, the visa application and other relevant documentation:
(1) The proper nonimmigrant classification, if any, of the alien; and
(2) The alien's eligibility to receive a visa.
(b) Waivers of personal appearance by consular officers. Unless otherwise instructed by the Deputy Assistant Secretary of State for Visa Services, a consular officer may waive the requirement of personal appearance in the case of any alien who the consular officer concludes presents no national security concerns requiring an interview and who:
(1) Is a child 16 years of age or under;
(2) Is a person 60 years of age or older;
(3) Is within a class of nonimmigrants classifiable under the visa symbols A-1, A-2, C-2, C-3, G-1, G-2, G-3, G-4, NATO-1, NATO-2, NATO-3, NATO-4, NATO-5, or NATO-6 and who is seeking a visa in such classification;
(4) Is an applicant for a diplomatic or official visa as described in §§ 41.26 and 41.27 of this chapter, respectively;
(5) Is an applicant who within 12 months of the expiration of the applicant's previously issued visa is seeking re-issuance of a nonimmigrant visa in the same classification at the consular post of the applicant's usual Start Printed Page 40129residence, and for whom the consular officer has no indication of visa ineligibility or noncompliance with U.S. immigration laws and regulations; or
(6) Is an alien for whom a waiver of personal appearance is warranted in the national interest or because of unusual circumstances, as determined by the consular officer.
(c) Waivers of personal appearance by the Deputy Assistant Secretary of State. The Deputy Assistant Secretary for Visa Services may waive the personal appearance before a consular officer of an individual applicant or a class of applicants if the Deputy Assistant Secretary finds that the waiver of personal appearance is warranted in the national interest or because of unusual circumstances and that national security concerns do not require an interview.
(d) Unusual circumstances. As used in this section, unusual circumstances shall include, but not be limited to, an emergency or unusual hardship.
Dated: June 26, 2003.
Assistant Secretary for Consular Affairs, Department of State.
[FR Doc. 03-17044 Filed 7-3-03; 8:45 am]
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