Susie
07-27-2006, 04:54 AM
DOS Final Rule On NIV Issuance
[Federal Register: June 30, 2006 (Volume 71, Number 126)]
[Rules and Regulations]
-----------------------------------------------------------------------
DEPARTMENT OF STATE
22 CFR Part 41
[Public Notice 5459]
Visas: Documentation of Nonimmigrants Under the Immigration and
Nationality Act, as Amended
AGENCY: State Department.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This rule expands guidance to consular offices for the review
of nonimmigrant visa issuances and refusals contained at 22 CFR
41.113(i) (new) and 22 CFR 41.121(c), respectively, to specify who
should conduct the reviews, the types of cases to be reviewed, and the
goals of the reviews.
DATES: Effective Date: This rule is effective on June 30, 2006.
FOR FURTHER INFORMATION CONTACT: Charles E. Robertson, Legislation and
Regulations Division, Visa Services, Department of State, Washington,
DC 20520-0106. Phone: 202-663-3969. E-mail: robertsonce3@state.gov.
SUPPLEMENTARY INFORMATION:
Why Is the Department Promulgating These Rules?
Nonimmigrant visa refusals and issuances are generally committed by
law to the adjudicating consular officer. The Department nevertheless
provides for them to be reviewed by consular experts in a supervisory
capacity. Such reviews are a significant management and instructional
tool useful in maintaining the highest professional standards of
adjudication and ensuring uniform and correct application of the law
and regulations. The purpose of this rule revision is to expand the
scope of reviews of nonimmigrant visa applications to ensure that
Department supervisors are reviewing both issuances and refusals to the
greatest extent practicable, while balancing workload considerations at
consular posts.
Why Has the Department Imposed a Review of Applications of Nonimmigrant
Issuances?
Current regulations require that the section chief or designee
review all visa refusals. The Foreign Affairs Manual (FAM) calls for a
spot check of NIV issuances. In order to enhance U.S. border security,
we are placing greater emphasis on reviewing issuances to ensure that
visas are issued in compliance with law and procedures. This rule
revision will provide a regulatory framework for a regular and targeted
review of both visa issuances and refusals.
Why Has the Department Reduced the Degree of Review of Refusals?
Due to the need to formalize our review of visa issuances beyond
spot checks in order to promote border security, it will no longer be
possible to review all visa refusals. We will continue to review
refusals to ensure appropriate adjudication standards are maintained,
while striking the appropriate balance between resources and essential
functions.
Who Will Review the Applications?
The reviewing officer will be the adjudicating consular officer's
direct supervisor, or a designated alternate. If the reviewing officer
disagrees with the consular officer's decision, and he or she has a
consular commission and title, the reviewing officer can assume
responsibility for the case and readjudicate it. If the reviewing
officer does not have a consular commission and title, he or she must
consult with the adjudicating officer, or with the Visa Office, to
resolve any disagreement. The Department's regulation at 22 CFR
41.121(c) specifies that a refusal must be reviewed without delay; that
is, on the day of the refusal or as soon as is administratively
possible. This rule will be applied to review of visa issuances as
well.
Regulatory Findings
Administrative Procedure Act
The Department's implementation of this regulation involves a
foreign affairs function of the United States and, therefore, in
accordance with 5 U.S.C. 553(a)(1), is not subject to the rule making
procedures set forth at 5 U.S.C. 553.
Regulatory Flexibility Act/Executive Order 13272: Small Business
This rule is not subject to the notice-and-comment rulemaking
provisions of the Administrative Procedure Act or any other act, and,
accordingly it does not require analysis under the Regulatory
Flexibility Act (5 U.S.C. 601, et seq.) and Executive Order 13272,
section 3(b).
The Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by 5 U.S.C. 804, for
purposes of congressional review of agency rulemaking under the Small
Business Regulatory Enforcement Fairness Act of 1996, Public Law No.
104-121. 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.
The Unfunded Mandates Reform Act of 1995
This rule is not subject to the notice-and-comment rulemaking
provisions of the Administrative Procedure Act or any other act, and,
accordingly it does not require analysis under the Unfunded Mandates
Reform Act of 1995 (Pub. L. No. 104-4). Moreover, this rule is not
expected to result in an annual expenditure of $100 million or more by
State, local, or tribal governments, or by the private sector. Nor will
it significantly or uniquely affect small governments.
Executive Orders 12372 and 13132: Federalism
The Department finds that this regulation will not have substantial
direct effects 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 does the
rule have federalism implications warranting the application of
Executive Orders No. 12372 and No. 13132.
Executive Order 12866: Regulatory Review
The Department does not consider this rule to be a ``significant
regulatory action'' under Executive Order 12866, section 3(f),
Regulatory Planning and Review. In addition, the Department is exempt
from Executive Order 12866 except to the extent that it is promulgating
regulations in conjunction with a domestic agency that are significant
regulatory actions. The Department has nevertheless reviewed the
regulation to ensure its consistency with the regulatory philosophy and
principles set forth in this Executive Order.
[[Page 37495]]
Executive Order 12988: Civil Justice Reform
The Department has reviewed the regulations in light of sections
3(a) and 3(b)(2) of Executive Order No. 12988 to eliminate ambiguity,
minimize litigation, establish clear legal standards, and reduce
burden.
The Paperwork Reduction Act of 1995
This rule does not impose information collection requirements under
the provisions of the Paperwork Reduction Act, 44 U.S.C., Chapter 35.
List of Subjects in 22 CFR Part 41
Aliens, Foreign officials, Immigration, Nonimmigrants, Passports
and visas, Students.
0
For the reasons stated in the preamble, the Department of State amends
22 CFR part 41 as follows:
PART 41--[AMENDED]
0
1. The authority citation for part 41 shall continue to read as
follows:
Authority: 8 U.S.C. 1104; Public Law No. 105-277, 112 Stat.
2681-795 through 2681-801. Additional authority is derived from
Section 104 of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA) Public Law 104-208, 110 Stat.
3546.
0
2. In Sec. 41.113, add paragraph (i) to read as follows:
Sec. 41.113 Procedures in issuing visas.
* * * * *
(i) Nonimmigrant visa refusals must be reviewed, in accordance with
guidance by the Secretary of State, by consular supervisors, or a
designated alternate, to ensure compliance with applicable laws and
procedures. Visa issuances must be reviewed without delay; that is, on
the day of issuance or as soon as is administratively possible. If the
reviewing officer disagrees with the decision and he or she has a
consular commission and title, the reviewing officer may assume
responsibility and readjudicate the case. If the reviewing officer does
not have a consular commission and title, he or she must consult with
the adjudicating officer, or with the Visa Office, to resolve any
disagreement.
0
3. In Sec. 41.121, revise paragraph (c) to read as follows:
Sec. 41.121 Refusal of individual visas.
* * * * *
(c) Nonimmigrant visa issuances must be reviewed, in accordance
with guidance by the Secretary of State, by consular supervisors, or a
designated alternate, to ensure compliance with laws and procedures. If
the ground(s) of ineligibility upon which the visa was refused cannot
be overcome by the presentation of additional evidence, the refusal
must be reviewed without delay; that is, on the day of the refusal or
as soon as it is administratively possible. If the ground(s) of
ineligibility may be overcome by the presentation of additional
evidence, and the applicant has indicated the intention to submit such
evidence, a review of the refusal may be deferred for not more than 120
days. If the reviewing officer disagrees with the decision and he or
she has a consular commission and title, the reviewing officer can
assume responsibility and readjudicate the case. If the reviewing
officer does not have a consular commission and title, he or she must
consult with the adjudicating officer, or with the Visa Office, to
resolve any disagreement.
* * * * *
Dated: June 16, 2006.
Maura Harty,
Assistant Secretary for Consular Affairs, Department of State.
[FR Doc. E6-10270 Filed 6-29-06; 8:45 am]
BILLING CODE 4710-05-P
[Federal Register: June 30, 2006 (Volume 71, Number 126)]
[Rules and Regulations]
-----------------------------------------------------------------------
DEPARTMENT OF STATE
22 CFR Part 41
[Public Notice 5459]
Visas: Documentation of Nonimmigrants Under the Immigration and
Nationality Act, as Amended
AGENCY: State Department.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This rule expands guidance to consular offices for the review
of nonimmigrant visa issuances and refusals contained at 22 CFR
41.113(i) (new) and 22 CFR 41.121(c), respectively, to specify who
should conduct the reviews, the types of cases to be reviewed, and the
goals of the reviews.
DATES: Effective Date: This rule is effective on June 30, 2006.
FOR FURTHER INFORMATION CONTACT: Charles E. Robertson, Legislation and
Regulations Division, Visa Services, Department of State, Washington,
DC 20520-0106. Phone: 202-663-3969. E-mail: robertsonce3@state.gov.
SUPPLEMENTARY INFORMATION:
Why Is the Department Promulgating These Rules?
Nonimmigrant visa refusals and issuances are generally committed by
law to the adjudicating consular officer. The Department nevertheless
provides for them to be reviewed by consular experts in a supervisory
capacity. Such reviews are a significant management and instructional
tool useful in maintaining the highest professional standards of
adjudication and ensuring uniform and correct application of the law
and regulations. The purpose of this rule revision is to expand the
scope of reviews of nonimmigrant visa applications to ensure that
Department supervisors are reviewing both issuances and refusals to the
greatest extent practicable, while balancing workload considerations at
consular posts.
Why Has the Department Imposed a Review of Applications of Nonimmigrant
Issuances?
Current regulations require that the section chief or designee
review all visa refusals. The Foreign Affairs Manual (FAM) calls for a
spot check of NIV issuances. In order to enhance U.S. border security,
we are placing greater emphasis on reviewing issuances to ensure that
visas are issued in compliance with law and procedures. This rule
revision will provide a regulatory framework for a regular and targeted
review of both visa issuances and refusals.
Why Has the Department Reduced the Degree of Review of Refusals?
Due to the need to formalize our review of visa issuances beyond
spot checks in order to promote border security, it will no longer be
possible to review all visa refusals. We will continue to review
refusals to ensure appropriate adjudication standards are maintained,
while striking the appropriate balance between resources and essential
functions.
Who Will Review the Applications?
The reviewing officer will be the adjudicating consular officer's
direct supervisor, or a designated alternate. If the reviewing officer
disagrees with the consular officer's decision, and he or she has a
consular commission and title, the reviewing officer can assume
responsibility for the case and readjudicate it. If the reviewing
officer does not have a consular commission and title, he or she must
consult with the adjudicating officer, or with the Visa Office, to
resolve any disagreement. The Department's regulation at 22 CFR
41.121(c) specifies that a refusal must be reviewed without delay; that
is, on the day of the refusal or as soon as is administratively
possible. This rule will be applied to review of visa issuances as
well.
Regulatory Findings
Administrative Procedure Act
The Department's implementation of this regulation involves a
foreign affairs function of the United States and, therefore, in
accordance with 5 U.S.C. 553(a)(1), is not subject to the rule making
procedures set forth at 5 U.S.C. 553.
Regulatory Flexibility Act/Executive Order 13272: Small Business
This rule is not subject to the notice-and-comment rulemaking
provisions of the Administrative Procedure Act or any other act, and,
accordingly it does not require analysis under the Regulatory
Flexibility Act (5 U.S.C. 601, et seq.) and Executive Order 13272,
section 3(b).
The Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by 5 U.S.C. 804, for
purposes of congressional review of agency rulemaking under the Small
Business Regulatory Enforcement Fairness Act of 1996, Public Law No.
104-121. 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.
The Unfunded Mandates Reform Act of 1995
This rule is not subject to the notice-and-comment rulemaking
provisions of the Administrative Procedure Act or any other act, and,
accordingly it does not require analysis under the Unfunded Mandates
Reform Act of 1995 (Pub. L. No. 104-4). Moreover, this rule is not
expected to result in an annual expenditure of $100 million or more by
State, local, or tribal governments, or by the private sector. Nor will
it significantly or uniquely affect small governments.
Executive Orders 12372 and 13132: Federalism
The Department finds that this regulation will not have substantial
direct effects 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 does the
rule have federalism implications warranting the application of
Executive Orders No. 12372 and No. 13132.
Executive Order 12866: Regulatory Review
The Department does not consider this rule to be a ``significant
regulatory action'' under Executive Order 12866, section 3(f),
Regulatory Planning and Review. In addition, the Department is exempt
from Executive Order 12866 except to the extent that it is promulgating
regulations in conjunction with a domestic agency that are significant
regulatory actions. The Department has nevertheless reviewed the
regulation to ensure its consistency with the regulatory philosophy and
principles set forth in this Executive Order.
[[Page 37495]]
Executive Order 12988: Civil Justice Reform
The Department has reviewed the regulations in light of sections
3(a) and 3(b)(2) of Executive Order No. 12988 to eliminate ambiguity,
minimize litigation, establish clear legal standards, and reduce
burden.
The Paperwork Reduction Act of 1995
This rule does not impose information collection requirements under
the provisions of the Paperwork Reduction Act, 44 U.S.C., Chapter 35.
List of Subjects in 22 CFR Part 41
Aliens, Foreign officials, Immigration, Nonimmigrants, Passports
and visas, Students.
0
For the reasons stated in the preamble, the Department of State amends
22 CFR part 41 as follows:
PART 41--[AMENDED]
0
1. The authority citation for part 41 shall continue to read as
follows:
Authority: 8 U.S.C. 1104; Public Law No. 105-277, 112 Stat.
2681-795 through 2681-801. Additional authority is derived from
Section 104 of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA) Public Law 104-208, 110 Stat.
3546.
0
2. In Sec. 41.113, add paragraph (i) to read as follows:
Sec. 41.113 Procedures in issuing visas.
* * * * *
(i) Nonimmigrant visa refusals must be reviewed, in accordance with
guidance by the Secretary of State, by consular supervisors, or a
designated alternate, to ensure compliance with applicable laws and
procedures. Visa issuances must be reviewed without delay; that is, on
the day of issuance or as soon as is administratively possible. If the
reviewing officer disagrees with the decision and he or she has a
consular commission and title, the reviewing officer may assume
responsibility and readjudicate the case. If the reviewing officer does
not have a consular commission and title, he or she must consult with
the adjudicating officer, or with the Visa Office, to resolve any
disagreement.
0
3. In Sec. 41.121, revise paragraph (c) to read as follows:
Sec. 41.121 Refusal of individual visas.
* * * * *
(c) Nonimmigrant visa issuances must be reviewed, in accordance
with guidance by the Secretary of State, by consular supervisors, or a
designated alternate, to ensure compliance with laws and procedures. If
the ground(s) of ineligibility upon which the visa was refused cannot
be overcome by the presentation of additional evidence, the refusal
must be reviewed without delay; that is, on the day of the refusal or
as soon as it is administratively possible. If the ground(s) of
ineligibility may be overcome by the presentation of additional
evidence, and the applicant has indicated the intention to submit such
evidence, a review of the refusal may be deferred for not more than 120
days. If the reviewing officer disagrees with the decision and he or
she has a consular commission and title, the reviewing officer can
assume responsibility and readjudicate the case. If the reviewing
officer does not have a consular commission and title, he or she must
consult with the adjudicating officer, or with the Visa Office, to
resolve any disagreement.
* * * * *
Dated: June 16, 2006.
Maura Harty,
Assistant Secretary for Consular Affairs, Department of State.
[FR Doc. E6-10270 Filed 6-29-06; 8:45 am]
BILLING CODE 4710-05-P