Visas; nonimmigrant documentation: Application fees and nonimmigrant visas issuance; visa fee waivers for aliens who will be engaged in charitable activities,
[Federal Register: October 2, 1998 (Volume 63, Number 191)]
[Rules and Regulations]
[Page 52969-52970]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02oc98-12]
DEPARTMENT OF STATE
[Public Notice 2894]
Documentation of Nonimmigrants Under the Immigration and Nationality Act, as Amended--Fees for Application and Issuance of Nonimmigrant VIsas
AGENCY: Department of State.
ACTION: Final rule.
SUMMARY: This rule finalizes, with one amendment, the interim rule published May 1, 1998, (63 FR 24107) relating to the waiver of visa fees for a
[[Page 52970]]
nonimmigrant alien who will be engaged in charitable activities in the United States. It also discusses the comments received in response to that rule.
DATES: This rule is effective October 2, 1998.
FOR FURTHER INFORMATION CONTACT: H. Edward Odom, Chief, Legislation and Regulations Division, Visa Services, Department of State, Washington, D.C. 20520-0106, (202) 663-1204.
SUPPLEMENTARY INFORMATION: Only one set of comments was received in response to the interim rule. The responder approved of the formulation of the requirement relating to the fees being a financial burden but had reservations about the other portions of the regulations added as a new paragraph (2) to 22 CFR 41.107(c).
Charitable Organizations
Specifically, the commenter was concerned by the language relating to a foreign charitable organization as needing to be recognized by its government ``under criteria substantially similar to those of section 501(c)(3)'' (the benchmark for charitable institutions in the United States), to wit, ``To interpret `substantially similar' to mean `almost the same', is problematic''. The commenter thus proposes that we apply the 501(c)(3) analogy only to institutions in countries which do not have any laws recognizing public charities.
The interim rule analogized to section 501(c)(3) of the Internal Revenue Code because it relates specifically to organizations engaged in charitable activities, as distinct from other non-profit organizations which are also tax-exempt under 501(c). We believe this to be a necessary distinction in connection with a provision of law designed explicitly to benefit those ``coming to the United States primarily for * * * a charitable purpose''. We are willing to accept the legal classification by other governments of charitable institutions, however, and modify that subparagraph accordingly.
Who Can Benefit?
The commenter was also concerned that section 41.107(c)(2)(ii) ``could be interpreted as limiting the charitable activities for services `only to the poor and needy' '' (emphasis supplied by the commenter). ``The statutory language does not limit the range of charitable services to the poor and needy.'' Fear was then expressed that this could disqualify providers of nursing services in hospitals that treat both those who are poor and needy and those who are not. The Department believes that the intent of the provision, informally dubbed by its sponsor as ``the Mother Theresa amendment'', did indeed relate specifically to assistance to the poor and needy. This belief stems directly from the express language of the statute: ``* * * the Secretary shall waive or reduce the fee * * * for any alien coming to the United States primarily for, * * * direct service or assistance to poor or otherwise needy individuals in the United States.'' (emphasis supplied) The Department also believes, however, that laws must be implemented reasonably, and therefore would not disqualify health-care providers who would be working at not-for-profit hospitals that were established primarily for the care of the poor and needy but may also take in some (not more than 25%) paying patients. Therefore, although the regulation will not be amended, the Department will issue further guidance to consular officers in this regard.
Location and Duration
Not least, the commenting organization was concerned by paragraph (c)(2)(iii) which requires that the letter requesting the fee waiver specify the location in which the alien(s) will be providing charitable services. Many religious organizations have widespread service locations and the commenter suggested that the sponsoring agency should determine when or where the alien(s) would be performing the charitable acts. The regulation merely requires that determination to have been made and stated in the application.
The Department must interpret the law, with respect to the issuance or refusal of visas, with due respect not only to the letter and intent of the provision but also to the practicalities involved. These practicalities include both placing the least burdensome impact possible on the beneficiary and providing the most effective, least bureaucratic methods to ensure that the law not be abused.
The Department does not believe that this particular commenting organization would take advantage of any loosening of the regulatory language. Nonetheless, experience dictates that attempted fraud and misrepresentation are and always have been rampant with respect to entry into the United States. The statute in this case is clear: ``Subject to such criteria as the Secretary of State may prescribe, * * * for any alien coming to the United States primarily for, or in activities related to, a charitable purpose involving health or nursing care, the provision of food or housing, job training, or any other similar direct service or assistance to poor or otherwise needy individuals * * *'' (emphasis supplied). The regulation set forth on May 1 requires only the assertion of verifiable data regarding the specific charitable purpose for which the alien intends to enter the United States as a nonimmigrant. In the absence of both a location and a proposed duration of stay which are clearly related to the charitable purpose for which the alien seeks to enter, compliance with the statutory requirement could not be verified at the time of application.
Therefore, the interim regulation becomes a final rule with one amendment as noted above.
List of Subjects in 22 CFR Part 41
Aliens, Nonimmigrants, Passports and visas.
In view of the foregoing, the interim rule amending 22 CFR part 41 which was published at 63 FR 24107 on May 1, 1998, is adopted as a final rule with the following change:
PART 41--[AMENDED]
-
The authority citation for part 41 continues to read as follows:
Authority: 8 U.S.C. 1104.
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Section 41.107(c)(2)(i) is amended to read as follows:
Sec. 41.107 Visa fees
* * * * *
(i) The organization seeking relief from the fees is, if based in the United States, tax-exempt as a charitable organization under the provisions of section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3)); if a foreign organization based outside the United States in a country having laws according recognition to charitable institutions, that it establishes that it is recognized as a charitable institution by that government; and if a foreign organization based in a country without such laws, that it is engaged in activities substantially similar to those underlying section 501(c)(3), and * * * * *
Dated: September 8, 1998. Mary A. Ryan, Assistant Secretary for Consular Affairs.
[FR Doc. 98-26383Filed10-1-98; 8:45 am]
BILLING CODE 4710-06-P
