Visas: Waiver for Ineligible Nonimmigrants Under Section 212(d)(3)(A)(i) of the Immigration and Nationality Act

 
CONTENT
Federal Register, Volume 84 Issue 87 (Monday, May 6, 2019)
[Federal Register Volume 84, Number 87 (Monday, May 6, 2019)]
[Rules and Regulations]
[Pages 19712-19715]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-09185]
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DEPARTMENT OF STATE
22 CFR Part 40
[Public Notice: 10571]
RIN 1400-AE72
Visas: Waiver for Ineligible Nonimmigrants Under Section
212(d)(3)(A)(i) of the Immigration and Nationality Act
AGENCY: Department of State.
ACTION: Final rule.
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SUMMARY: Under the Immigration and Nationality Act (INA), a visa
applicant found inadmissible is ineligible for a visa and for admission
to the United States. The INA provides the Secretary of State and
consular officers the authority to recommend that the U.S. Department
of Homeland Security (DHS) approve a waiver, of most grounds of
inadmissibility, that will allow the nonimmigrant visa applicant to be
issued a visa and seek admission to the United States. This rule amends
U.S. Department of State (``State'') regulations relating to consular
officer recommendations relating to DHS waivers for nonimmigrant visa
applicants, including the requirement that a consular officer, upon the
request of an applicant, must submit a report to State concerning a
waiver. Under the revised rule, consular officers will be required to
refer waiver requests to State only when they involve security-related
inadmissibility grounds or, with respect to applicant requests, only if
the case meets circumstances where a referral is required by State
guidance. The rule does not infringe current consular officer
discretion to refer cases to State or to make recommendations directly
to the Department of Homeland Security.
DATES: This rule is effective on May 6, 2019.
FOR FURTHER INFORMATION CONTACT: Taylor Beaumont, Acting Chief,
Legislation and Regulations Division, Legal Affairs, Office of Visa
Services, Bureau of Consular Affairs, 600 19th Street NW, Washington,
DC 20522, 202-485-8910, [email protected].
SUPPLEMENTARY INFORMATION: Aliens are ineligible to receive visas if
they are inadmissible under any of the grounds in section 212(a) of the
Immigration and Nationality Act (INA), 8 U.S.C. 1182(a). Section
212(d)(3)(A)(i) of the INA, 8 U.S.C. 1182(d)(3)(A)(i), authorizes the
Department of Homeland Security to approve a waiver covering most
grounds in section 212(a) of the INA, if the Secretary of State or a
consular officer recommends that the alien be admitted temporarily into
the United States, despite the inadmissibility. This provision does not
authorize waivers under INA sections 212(a)(3)(A)(i)(I) (espionage or
sabotage), (3)(A)(ii) (unlawful activity), (3)(A)(iii) (opposition to
or overthrow of United States Government or opposition by force,
violence, or unlawful means), (3)(C) (serious adverse foreign policy
consequences), (3)(E)(i) (participation in Nazi persecutions), or
(3)(E)(ii) (participation in genocide)). State regulations at 22 CFR
40.301 describe the authority of consular officers to recommend
waivers.
    For cases in which a nonimmigrant visa applicant is inadmissible
based on an inadmissibility ground for which a waiver may be granted
under section 212(d)(3)(A)(i) of the INA, and the consular officer has
decided not to recommend a DHS waiver on the officer's own authority,
but the applicant or an interested party insists on pursuing a waiver,
22 CFR 40.301 currently requires the consular officer to refer the
request to State for a possible exercise of the Secretary of State's
authority to recommend a waiver to
[[Page 19713]]
DHS. Neither section 212(d)(3)(A)(i) of the INA nor Department
regulations prescribe standards or criteria for the consular officers
making referrals to State. While the INA makes no express provision for
the submission by nonimmigrant visa applicants of requests for section
212(d)(3)(A)(i) waivers, State created an avenue for such requests in
22 CFR 40.301(a). See 24 FR 6678, 6686 (1959) (formerly 22 CFR
41.95(a)).
    This final rule modifies the non-statutory requirement for consular
officers to refer section 212(d)(3)(A)(i) waiver requests to State for
consideration based on an applicant's request, by limiting it to
specified circumstances. This rule will increase transparency for
inadmissible aliens seeking an exercise of the Secretary's authority to
recommend DHS grant a waiver, and will limit the requirement that
consular officers refer waiver requests to circumstances that involve a
key State interest, as reflected in the enumerated criteria. This rule
has no impact on cases involving security-related grounds of
inadmissibility, which consular officers must consider in accordance
with other State guidance, on consular officers' existing discretion to
pursue waivers on behalf of ineligible visa applicants, or on the
factors DHS considers in exercising its section 212(d)(3)(A) waiver
authority.
    Under this rule, which constitutes an exercise of the Secretary of
State's authority under section 212(d)(3)(A)(i) of the INA, consular
officers are required to refer waiver requests to State in response to
a request from the Secretary of State, whose request shall be presumed
to meet one of the criteria (paragraphs 1-5) enumerated below, or in
response to a request from a visa applicant for a case that the
consular officer has reason to believe involves one of the following
circumstances:
    1. Foreign Relations: Refusal of the nonimmigrant visa application
would become a bilateral irritant or be raised by a foreign government
with a high ranking United States Government official;
    2. National Security: The nonimmigrant visa applicant's admission
to the United States would advance a U.S. national security interest;
    3. Law Enforcement: The nonimmigrant visa applicant's admission to
the United States would advance an important U.S. law enforcement
objective;
    4. Significant Public Interest: The nonimmigrant visa applicant's
admission to the United States would advance a significant U.S. public
interest ; or
    5. Urgent humanitarian or medical reasons: The nonimmigrant visa
applicant's admission to the United States is warranted due to urgent
humanitarian or medical reasons.
    Consistent with this exercise of the Secretary's authority to
recommend a waiver under section 212(d)(3)(A)(i) of the INA, this rule
also clarifies that requests by the Secretary for a consular officer to
submit a report to State are presumed to involve one of the enumerated
circumstances. In addition, this rule includes technical edits to
improve the structure and clarity of 22 CFR 40.301, revise the heading
of paragraph (b) to clarify that consular officers are permitted to
submit recommendations to a designated DHS office, and eliminate the
requirement that the Secretary of State define certain categories of
cases for which consular officers may recommend waivers directly to
DHS.
    The rule clarifies existing State guidance that consular officers
may refer to State, but may not submit directly to DHS, a
recommendation to DHS to waive certain security-related grounds of
inadmissibility and the rule narrows the scope of other situations in
which consular officers must refer waiver cases to State, upon request
of the applicant or on their own initiative, to those cases the
consular officer believes meet one of the criteria enumerated below.
This rule does not affect consular officers' existing authority or
discretion to submit non-security related waiver recommendations
directly to DHS or refer cases to State. The vast majority of waiver
recommendations to DHS under section 212(d)(3)(A)(i) of the INA are
initiated by consular officers without applicant requests. The rule
does not limit, in any way, DHS's independent discretionary authority
to approve or deny a waiver. Finally, the rule applies only to visa
applications for which the consular officer conducts an in person
interview under section 222(h) of the INA on or after the rule's
effective date.
    In all cases in which the consular officer: (1) Determines a
nonimmigrant visa applicant is not eligible for a visa due to
inadmissibility; (2) decides not to recommend directly that DHS grant a
waiver; (3) would choose not to refer the case to State to consider
pursuing a waiver, but the applicant continues to request a waiver; (4)
determines that there is no reason to believe that one of the criteria
for referral to State are met; the officer will refuse the visa
application without referring the case to State, notwithstanding the
applicant's request. In cases where an applicant requests a waiver
referral to State, the adjudicating consular officer will determine
whether the case involves one of the enumerated five criteria and will
inform the applicant whether or not the officer will make the referral
to State. While there is no mechanism for applicants to seek
reconsideration or appeal of a consular officer's determination that
the request does not satisfy one of the enumerated criteria, affected
applicants may submit new nonimmigrant visa applications with
information justifying a waiver under one of the enumerated grounds.
Regulatory Findings
Administrative Procedure Act
    This rule constitutes a rule of policy and procedure, and as a
result, it is exempt from notice and comment under 5 U.S.C.
553(b)(3)(A). This final rule limits the non-statutory requirement that
consular officers refer requests for waivers under INA section
212(d)(3)(A) to the Department, by specifying limited circumstances,
based on a new policy, in which such referrals are required. Because
this is a rule of policy and procedure, it is effective upon
publication in the Federal Register.
Regulatory Flexibility Act/Executive Order 13272: Small Business
    Because this final rule is exempt from notice and comment
rulemaking under 5 U.S.C. 553, it is exempt from the regulatory
flexibility analysis requirements set forth by the Regulatory
Flexibility Act (5 U.S.C. 603 and 604). Nonetheless, consistent with
the Regulatory Flexibility Act (5 U.S.C. 605(b)), the Department of
State certifies that this rule will not have a significant economic
impact on a substantial number of small entities.
Unfunded Mandates Reform Act of 1995
    The Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1532, generally
requires agencies to prepare a statement before proposing any rule that
may result in an annual expenditure of $100 million or more by State,
local, or tribal governments, or by the private sector. This rule does
not require the Department of State to prepare a statement because it
will not result in any such expenditure, nor will it significantly or
uniquely affect small governments. This rule involves visas, which
involves individuals, and does not directly or substantially affect,
state, local, or tribal governments, or businesses.
[[Page 19714]]
Small Business Regulatory Enforcement Fairness Act of 1996
    This rule is not a major rule as defined in 5 U.S.C. 804, for
purposes of congressional review of agency rulemaking under the Small
Business Regulatory Enforcement Fairness 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 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.
Executive Orders 12866 and 13563
    Executive Orders 13563 and 12866 direct 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
effects, distributed impacts, and equity). These Executive Orders
stress the importance of quantifying both costs and benefits, of
reducing costs, of harmonizing rules, and of promoting flexibility. The
Department of State has examined this rule in light of Executive Order
13563, and has determined that the rulemaking is consistent with the
guidance therein. The Department of State has reviewed this rulemaking
to ensure its consistency with the regulatory philosophy and principles
set forth in Executive Order 12866. The Office of Information and
Regulatory Affairs (OIRA) has determined this rule to be a significant,
though not economically significant, regulatory action. Consequently,
OIRA has reviewed this rule. This rule will ensure consistency with
U.S. and international law and the increased clarity will benefit the
U.S. public. There are no anticipated direct costs to the public
associated with this rule.
Executive Orders 12372 and 13132: Federalism
    This regulation will not have substantial direct effect on the
States, on the relationship between the national government and the
States, or the distribution of power and responsibilities among the
various levels of government. Nor will the rule have federalism
implications warranting the application of Executive Orders 12372 and
13132.
Executive Order 12988: Civil Justice Reform
    The Department of State has reviewed the rule in light of sections
3(a) and 3(b)(2) of Executive Order 12988 to eliminate ambiguity,
minimize litigation, establish clear legal standards, and reduce
burden.
Executive Order 13175--Consultation and Coordination With Indian Tribal
Governments
    The Department of State 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 Section 5 of Executive
Order 13175 do not apply to this rulemaking.
Executive Order 13771
    This rule is not subject to the requirements of Executive Order
13771 because it is de minimis.
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.
List of Subjects in 22 CFR Part 40
    Aliens, Immigration, Visas.
    Accordingly, for the reasons set forth in the preamble, 22 CFR part
40 is amended to read as follows:
PART 40--REGULATIONS PERTAINING TO BOTH NONIMMIGRANTS AND
IMMIGRANTS UNDER THE IMMIGRATION AND NATIONALITY ACT, AS AMENDED
0
1. The authority citation for part 40 is revised to read as follows:
    Authority: 8 U.S.C. 1104, 8 U.S.C. 1182.
0
 2. Section 40.301 is revised to read as follows:
Sec.  40.301  Waiver for ineligible nonimmigrants under INA
212(d)(3)(A).
    (a) Recommendations under INA 212(d)(3)(A)(i). (1) Consular
officers, on their own initiative in cases they believe meet one of the
criteria in paragraphs (a)(2)(i) through (v) of this section, may
submit a report to the Department for possible transmission to the
designated DHS office pursuant to INA 212(d)(3)(A)(i) (8 U.S.C.
1182(d)(3)(A)(i)), in the case of an alien who is classifiable as a
nonimmigrant but who the consular officer knows or believes is
ineligible to receive a nonimmigrant visa due to inadmissibility under
the provisions of INA 212(a) (8 U.S.C. 1182(a)), other than INA
212(a)(3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C), (3)(E)(i), or
(3)(E)(ii).
    (2) In response to a request from the Secretary of State, which
shall be presumed to meet one of the criteria in paragraphs (a)(2)(i)
through (v) of this section, or in response to a request from a visa
applicant for a case that the consular officer has reason to believe
meets one of the criteria in paragraphs (a)(2)(i) through (v), consular
officers are required to submit a report to the Department for possible
transmission to the designated DHS office pursuant to INA 212(d)(3)(A)
in the case of an alien who is classifiable as a nonimmigrant but whom
the consular officer knows or believes is ineligible to receive a
nonimmigrant visa due to inadmissibility under the provisions of INA
212(a), other than INA 212(a)(3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii),
(3)(C), (3)(E)(i), or (3)(E)(ii).
    (i) Foreign Relations: Refusal of the nonimmigrant visa application
would become a bilateral irritant or be raised by a foreign government
with a high ranking United States government official;
    (ii) National security. The nonimmigrant visa applicant's admission
to the United States would advance a U.S. national security interest;
    (iii) Law enforcement. The nonimmigrant visa applicant's admission
to the United States would advance an important U.S. law enforcement
objective;
    (iv) Significant public interest. The nonimmigrant visa applicant's
admission to the United States would advance a significant U.S. public
interest, or
    (v) Urgent humanitarian or medical reasons. The nonimmigrant visa
applicant's admission to the United States may be warranted due to
urgent humanitarian or medical reasons.
    (b) Recommendation to designated DHS office. Consular officers may
recommend directly to the designated DHS office that the alien be
admitted temporarily despite his or her inadmissibility in any case
where a waiver may be available, unless the consular officer has reason
to believe that the applicant is inadmissible under INA
212(a)(3)(A)(i), (3)(A)(ii), (3)(A)(iii), (3)(B), (3)(C), (3)(D),
(3)(E)(i), (3)(E)(ii), (3)(E)(iii), (3)(F), or (3)(G) . The Department
may recommend that the Secretary of Homeland Security waive
ineligibility under any ground in section 212(a) of the INA, except for
sections 212(a)(3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C),
(3)(E)(i), and (3)(E)(ii).
    (c) Secretary of Homeland Security may impose conditions. When the
Secretary of Homeland Security authorizes the temporary admission of an
inadmissible alien as a nonimmigrant and the consular officer is so
informed,
[[Page 19715]]
the consular officer may proceed with the issuance of a nonimmigrant
visa to the alien, subject to the conditions, if any, imposed by the
Secretary of Homeland Security.
Carl C. Risch,
Assistant Secretary for Consular Affairs, Department of State.
[FR Doc. 2019-09185 Filed 5-3-19; 8:45 am]
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