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

Citation84 FR 19712
Record Number2019-09185
Published date06 May 2019
SectionRules and Regulations
CourtState Department
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]
                BILLING CODE 4710-06-P
                

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