Rule2021-26657
Waiver of Personal Appearance and In-Person Oath Requirement for Certain Immigrant Visa Applicants Due to COVID-19
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
December 13, 2021
Effective
December 13, 2021
Issuing agencies
State Department
Abstract
This temporary final rule (TFR) provides flexibility for consular officers to waive the personal appearance of certain repeat immigrant visa applicants who were approved for an immigrant visa in the same classification and on the same basis as the current application on or after August 4, 2019. It also gives consular officers discretion to allow this subset of immigrant visa applicants to affirm the accuracy of the contents of their application without appearing in person before a consular officer. This TFR is effective immediately and expires after 24 months. The final rule portion of this document reinstates parts of the regulations with certain updates after the expiration of the TFR.
Full Text
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<title>Federal Register, Volume 86 Issue 236 (Monday, December 13, 2021)</title>
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[Federal Register Volume 86, Number 236 (Monday, December 13, 2021)]
[Rules and Regulations]
[Pages 70735-70740]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-26657]
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DEPARTMENT OF STATE
22 CFR Part 42
[Public Notice: 11460]
RIN 1400-AF20
Waiver of Personal Appearance and In-Person Oath Requirement for
Certain Immigrant Visa Applicants Due to COVID-19
AGENCY: Department of State.
ACTION: Final rule and temporary final rule.
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SUMMARY: This temporary final rule (TFR) provides flexibility for
consular officers to waive the personal appearance of certain repeat
immigrant visa applicants who were approved for an immigrant visa in
the same classification and on the same basis as the current
application on or after August 4, 2019. It also gives consular officers
discretion to allow this subset of immigrant visa applicants to affirm
the accuracy of the contents of their application without appearing in
person before a consular officer. This TFR is effective immediately and
expires after 24 months. The final rule portion of this document
reinstates parts of the regulations with certain updates after the
expiration of the TFR.
DATES: Amendments in instructions 2 and 3 in this temporary final rule
are effective from December 13, 2021, through December 13, 2023. The
amendment in instruction 4 is effective December 13, 2023.
FOR FURTHER INFORMATION CONTACT: Andrea Lage, Acting Senior Regulatory
Coordinator, Visa Services Directorate, Bureau of Consular Affairs,
Department of State; telephone (202) 485-7586, <a href="/cdn-cgi/l/email-protection#fdab948e9caf989a8ebd8e899c8998d39a928b"><span class="__cf_email__" data-cfemail="81d7e8f2e0d3e4e6f2c1f2f5e0f5e4afe6eef7">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. What changes to 22 CFR 42.62 and 42.67 does this TFR make?
The Department is temporarily authorizing consular officers, for 24
months, to waive, on a discretionary basis, the requirements in 22 CFR
42.62 and 42.67 that an immigrant visa applicant appear in person
before and be interviewed by a consular officer for certain repeat
immigrant visa applicants. This TFR applies to immigrant visa
applicants who were issued a U.S. immigrant visa on or after August 4,
2019, who meet the following additional criteria: Individuals who would
be eligible for a discretionary waiver of personal appearance and
interview pursuant to this TFR must be seeking an immigrant visa in the
same classification (or another classification as the result of
automatic conversion due to the death or naturalization of the
petitioner of the previously issued immigrant visa) and pursuant to the
same approved petition as their previously approved application, and
they must continue to qualify for the immigrant visa sought.
Under this TFR, the personal appearance and interview of certain
applicants for an immigrant visa may be waived in the discretion of the
consular officer, provided that the applicant is willing to affirm
under penalty of perjury to the information provided on the Online
Immigrant Visa and Alien Registration Application, Form DS-260 (or Form
DS-230, Application for Immigrant Visa and Alien Registration if the
consular officer authorizes the use of that form). The consular officer
may communicate with the applicant by telephone or email, may request
that the applicant provide additional information that the consular
officer deems necessary, and may request the applicant to appear in
person. If the applicant identifies the need to change responses to
Form DS-260, the consular officer or other authorized consular staff
can reopen the DS-260 for the applicant to make changes to that form
and re-sign it under penalty of perjury.
This TFR will automatically expire 24 months after it takes effect.
As the TFR is designed to help address the problem of applicants who
are unable to travel due to the COVID-19 pandemic and who must meet
specific time-limited criteria, this TFR will no longer be necessary as
the pandemic becomes less acute and ordinary travel resumes. The
Department believes that 24 months is sufficient to process the cases
described.
Pursuant to section 222(a) of the Immigration and Nationality Act
(INA), 8 U.S.C. 1202(a), every immigrant visa applicant must make an
application in the form, manner, and place prescribed by regulation.
Except as may otherwise be prescribed by regulations, every immigrant
visa application must ``be signed by the applicant in the presence of
the consular officer and verified by the oath of the applicant
administered by the consular officer.'' INA 222(e), 8 U.S.C. 1202(e).
Regulations further require immigrant visa applicants to be interviewed
by a consular officer. 22 CFR 42.62(b). This TFR provides an exception
to these personal appearance and interview requirements pursuant to INA
222(a) and (e), 8 U.S.C. 1202(a) and (e).
II. Why is the Department promulgating this TFR?
A. The COVID-19 Pandemic
On January 31, 2020, the Secretary of Health and Human Services
declared a public health emergency under section 319 of the Public
Health Service Act (42 U.S.C. 247d) in response to COVID-19.\1\ On
March 13, 2020, then-President Trump declared a National Emergency
concerning the COVID-19 outbreak to control the spread of the virus
that causes COVID-19 in the United States.\2\ That proclamation
declared that the emergency began in the United States on March 1,
2020. In addition to the National Emergency, a variety of Presidential
Proclamations have
[[Page 70736]]
suspended entry of certain noncitizens into the United States since the
public health emergency began. On January 31, 2020, then-President
Trump issued Presidential Proclamation 9984, which, subject to
limitations, suspended and limited the entry of certain noncitizens who
had been physically present in the People's Republic of China
(excluding the Special Administrative Regions of Hong Kong and Macau)
for the 14-day period prior to their entry into the United States.\3\
Similar suspensions of entry were issued under Presidential
Proclamation 9992, dated February 29, 2020 (the Islamic Republic of
Iran); \4\ Presidential Proclamation 9993, dated March 11, 2020 (the
Schengen Area); \5\ Presidential Proclamation 9996, dated March 14,
2020 (the United Kingdom (excluding overseas territories outside of
Europe) and the Republic of Ireland); \6\ Presidential Proclamation
10014, dated April 22, 2020 (immigrants who present a risk to the U.S.
labor market) \7\ (subsequently revoked by Presidential Proclamation
10149, dated February 24, 2021); \8\ Presidential Proclamation 10041,
dated May 24, 2020 (the Federative Republic of Brazil); \9\
Presidential Proclamation 10143, dated January 25, 2021 (the Schengen
Area, the United Kingdom (excluding overseas territories outside of
Europe), the Republic of Ireland, the Federative Republic of Brazil,
and the Republic of South Africa); \10\ and Presidential Proclamation
10199, dated April 30, 2021 (the Republic of India).\11\
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\1\ HHS, Determination of Public Health Emergency, 85 FR 7316
(Feb. 7, 2020).
\2\ Proclamation 9994 of March 13, 2020, Declaring a National
Emergency Concerning the Coronavirus Disease (COVID-19) Outbreak, 85
FR 15337 (Mar. 18, 2020).
\3\ Proclamation 9984 of January 31, 2020, Suspension of Entry
as Immigrants and Nonimmigrants of Persons Who Pose a Risk of
Transmitting 2019 Novel Coronavirus and Other Appropriate Measures
To Address This Risk, 85 FR 6709 (Feb. 5, 2020).
\4\ Proclamation 9992 of February 29, 2020, Suspension of Entry
as Immigrants and Nonimmigrants of Certain Additional Persons Who
Pose a Risk of Transmitting 2019 Novel Coronavirus, 85 FR 12855
(Mar. 4, 2020).
\5\ Proclamation 9993 of March 14, 2020, Suspension of Entry as
Immigrants and Nonimmigrants of Certain Additional Persons Who Pose
a Risk of Transmitting 2019 Novel Coronavirus, 85 FR 15045 (Mar. 16,
2020).
\6\ Proclamation 9996 of March 11, 2020, Suspension of Entry as
Immigrants and Nonimmigrants of Certain Additional Persons Who Pose
a Risk of Transmitting 2019 Novel Coronavirus, 85 FR 15341 (Mar. 18,
2020).
\7\ Proclamation 10014 of April 22, 2020, Suspension of Entry of
Immigrants Who Present a Risk to the United States Labor Market
During the Economic Recovery Following the 2019 Novel Coronavirus
Outbreak, 85 FR 23441 (Apr. 27, 2020).
\8\ Proclamation 10149 of February 24, 2021, A Proclamation on
Revoking Proclamation 10014, 86 FR 11847 (Mar. 1, 2021).
\9\ Proclamation 10041 of May 24, 2020, Suspension of Entry as
Immigrants and Nonimmigrants of Certain Additional Persons Who Pose
a Risk of Transmitting 2019 Novel Coronavirus, 85 FR 31933 (May 28,
2020).
\10\ Proclamation 10143 of January 25, 2021, Suspension of Entry
as Immigrants and Nonimmigrants of Certain Additional Persons Who
Pose a Risk of Transmitting Coronavirus Disease 2019, 86 FR 7467
(Jan. 28, 2021).
\11\ Proclamation 10199 of April 30, 2021, Suspension of Entry
as Nonimmigrants of Certain Additional Persons Who Pose a Risk of
Transmitting Coronavirus Disease 2019, 86 FR 24297 (May 6, 2021).
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COVID-19 is a communicable disease caused by a coronavirus, SARS-
CoV-2. It appears to spread easily and sustainably within
communities.\12\ The SARS-CoV-2 virus is thought to transfer primarily
by person-to-person contact through respiratory droplets produced when
an infected person coughs or sneezes; it may also transfer through
contact with surfaces or objects contaminated with these droplets or by
airborne transmission through exposure to virus in small droplets and
particles that can linger in the air for minutes to hours.\13\ People
who are infected but do not show symptoms can also spread the virus to
others.\14\ The ease of transmission presents a risk of a surge in
hospitalizations for COVID-19, which would reduce available hospital
capacity.
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\12\ CDC, How COVID-19 Spreads (May 13, 2021), <a href="https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid-spreads.html">https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid-spreads.html</a>.
\13\ Id.
\14\ Id.
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Symptoms include fever and chills, cough, shortness of breath,
fatigue, muscle and body aches, headache, loss of taste or smell, sore
throat, congestion or runny nose, nausea, or diarrhea, which typically
appear two to 14 days after exposure.\15\ Manifestations of severe
disease have included pneumonia, hypoxemic respiratory failure/ARDS,
sepsis and septic shock, cardiomyopathy and arrhythmia, acute kidney
injury, and complications from prolonged hospitalization, including
secondary bacterial and fungal infections, thromboembolism,
gastrointestinal bleeding, and critical illness polyneuropathy/
myopathy.\16\ Older adults and people who have severe chronic medical
conditions are also at higher risk for more serious COVID-19
illness.\17\
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\15\ CDC, Coronavirus Disease 2019 (COVID-19) (Feb. 22, 2021),
<a href="https://www.cdc.gov/coronavirus/2019-ncov/symptoms-testing/symptoms.html">https://www.cdc.gov/coronavirus/2019-ncov/symptoms-testing/symptoms.html</a>.
\16\ CDC, Interim Clinical Guidance for Management of Patients
with Confirmed Coronavirus Disease (COVID-19) (Feb. 16, 2021),
<a href="https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidance-management-patients.html">https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidance-management-patients.html</a>.
\17\ CDC, People with Certain Medical Conditions (Aug. 20,
2021), <a href="https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fneed-extra-precautions%2Fgroups-at-higher-risk.html">https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fneed-extra-precautions%2Fgroups-at-higher-risk.html</a>.
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As of November 16, 2021, there were approximately 254,174,536
identified cases of COVID-19 globally, resulting in approximately
5,112,325 deaths; and approximately 46,993,724 identified cases in the
United States, and approximately 760,266 \18\ deaths, with new cases
being reported daily.
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\18\ Johns Hopkins, COVID-19 Map, (Oct. 5, 2021), <a href="https://coronavirus.jhu.edu/map.html">https://coronavirus.jhu.edu/map.html</a>;
CDC, Coronavirus Disease 2019 (COVID-19): Cases in U.S. (Oct.
5, 2021), <a href="https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html">https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html</a>.
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On March 20, 2020, in response to significant worldwide challenges
related to the COVID-19 pandemic, the Department temporarily suspended
routine visa services at all U.S. Embassies and Consulates.\19\ The
Department authorized posts to begin a phased resumption of visa
services, on a post-by-post basis, beginning on July 15, 2020,
consistent with the Department's guidance for safely returning the
Department's workforce to its facilities.\20\ The Department noted that
local conditions such as medical infrastructure, COVID-19 cases,
emergency response capabilities, and restrictions on leaving home may
affect when Department facilities can begin to provide routine
services.\21\ The Department's embassies and consulates are
implementing safeguards to keep staff and customers safe, including
implementing physical distancing in waiting rooms, scheduling fewer
interviews at a time, frequent disinfection of high touch areas, and
following local health and safety regulations.\22\
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\19\ Department of State, Suspension of Routine Visa Services
(Mar. 20, 2020), <a href="https://travel.state.gov/content/travel/en/News/visas-news/suspension-of-routine-visa-services.html">https://travel.state.gov/content/travel/en/News/visas-news/suspension-of-routine-visa-services.html</a>.
\20\ Department of State, Phased Resumption of Visa Services,
(Apr. 6, 2021), <a href="https://travel.state.gov/content/travel/en/News/visas-news/visa-services-operating-status-update.html">https://travel.state.gov/content/travel/en/News/visas-news/visa-services-operating-status-update.html</a>.
\21\ Id.
\22\ Id.
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B. Allocation of Limited Consular Resources
Individuals who have been issued an immigrant visa may need to seek
a subsequent immigrant visa for a variety of reasons. Immigrant visas
have a maximum validity of six months. That means recipients of
immigrant visas typically have up to a maximum of six months to travel
to the United States and apply for admission with a DHS immigration
officer after visa issuance. If admitted, the individual becomes a
lawful permanent resident. Individuals who were issued an immigrant
visa may have been unable or unwilling to seek admission during the
period of validity; they may know that they will be unable to use the
visa during the period of
[[Page 70737]]
validity; or their visa may have been lost or mutilated. Depending on
the circumstances, a repeat immigrant visa applicant may be required to
submit a new Form DS-260/DS-230, in which case the applicant must
submit any required supporting documents and must pay a new fee.\23\
This TFR makes no changes to form or fee requirements.
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\23\ 22 CFR part 42 governs immigrant visas. 22 CFR 42.71
governs immigrant visa fees. 22 CFR 42.72 sets the maximum immigrant
visa validity period at six months, and 22 CFR 42.74 addresses
certain new, replacement, and duplicate visas. Individuals seeking
another visa pursuant to 22 CFR 42.74 are not required to submit a
new application and are not impacted by this TFR.
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As set forth in 22 CFR 42.62 and 42.67, immigrant visa applicants
ordinarily must appear in person before a consular officer to execute
their application and subscribe to the contents of their application
under oath, and they must be interviewed by a consular officer.
The requirement for immigrant visa applicants to be interviewed by
a consular officer and to execute and affirm the information presented
on the Form DS-260/DS-230 application before a consular officer
provides benefits to the Department and applicants alike. Consular
officers have an opportunity to assess the credibility of immigrant
visa applicants when they appear in person, while visa applicants are
provided an opportunity, if necessary, to correct, any information on
their application, which the applicants sign under penalty of perjury.
Applicants could face civil and criminal consequences for material
misrepresentations. However, there is reduced benefit from requiring
the recipient of a previously approved immigrant visa to return to the
consular post to execute their application in person, take an in-person
oath, and be interviewed for an identical or substantially similar
application, and those actions would significantly strain consular
resources. Accordingly, in light of current resource considerations due
to the COVID-19 pandemic, the Department is temporarily permitting
consular officers to waive a second personal appearance and interview
at the consular officer's discretion.
Local conditions such as medical infrastructure, COVID-19 cases,
emergency response capabilities, and restrictions on leaving home may
affect when and the extent to which Department facilities can provide
routine services, including scheduling appointments and the ability of
applicants to obtain documentation and medical screening appointments.
The Department's embassies and consulates are implementing safeguards
to keep staff and customers safe, including implementing physical
distancing in waiting rooms, scheduling fewer interviews at a time,
frequently disinfecting high touch areas, and following local health
and safety regulations. The Department is facing a high demand for visa
services, and the policy announced in this TFR will help allocate
scarce resources to areas where personal appearances by and interviews
of visa applicants are relatively more beneficial.
The Department conducted a database query to determine how many
individuals may benefit from this rule and determined that nearly
49,000 individuals were issued immigrant visas between August 4, 2019
(180 days before the first Presidential Proclamation suspending entry
into the United States of certain immigrants in relation to the COVID-
19 pandemic) and September 30, 2021, and have not yet sought admission.
Of the individuals issued immigrant visas between August 4, 2019, and
May 31, 2021, over 11,000 did not seek admission before their immigrant
visas expired. Additionally, according to the Department's database
query, at least 244 individuals were refused admission into the United
States at a port of entry between August 4, 2019, and September 30,
2021, though it is not certain how many of those refusals of admission
were due to suspensions of entry relating to the COVID-19 pandemic.
Some individuals in this population may be eligible to benefit from
this rule.
This TFR applies to a narrow category of immigrant visa applicants.
To qualify for the discretionary in-person waiver, an applicant must:
(1) Have been issued a U.S. immigrant visa on or after August 4,
2019;
(2) Seek an immigrant visa in the same classification and pursuant
to the same approved petition as the previously issued immigrant visa,
or an immigrant visa pursuant to the same approved petition as the
previously issued visa but in a different classification because it was
automatically converted due to the death or naturalization of the
petitioner of the previously issued immigrant visa;
(3) Qualify for an immigrant visa in the same classification, or
another classification as the result of automatic conversion due to the
death or naturalization of the petitioner of the previously issued
immigrant visa, and pursuant to the same approved petition as the
previously issued immigrant visa; and
(4) Have no changed circumstances that could affect the applicant's
eligibility for the visa.
This TFR furthers the Department's commitment to the health and
safety of consular officers and customers by reducing personal
appearances, as appropriate, which could potentially expose consular
officers, locally employed staff, applicants, and customers to COVID-
19. This will also save time and travel expenses for applicants who
wish to apply for another immigrant visa after having been unable or
unwilling to use their original visa. This TFR is effective until 24
months following its publication in the Federal Register.
III. Regulatory Findings
A. Administrative Procedure Act (APA)
This TFR is being issued without prior notice and opportunity to
comment and with an immediate effective date pursuant to 5 U.S.C.
553(a)(1), (b)(A), (b)(B), and (d)(3), the Administrative Procedure Act
(APA), 5 U.S.C. 551, et seq.
1. Foreign Affairs
This TFR involves a foreign affairs function of the United States.
In Raoof v. Sullivan, the U.S. District Court for the District of
Columbia found that the Department properly exercised the foreign
affairs exception under the APA when it ``did not engage in formal
rule-making'' for the J-1 nonimmigrant visa two-year foreign residence
requirement because ``the exchange visitor program--with its statutory
mandate for international interaction through nonimmigrants--certainly
relates to foreign affairs and diplomatic duties conferred upon the
Secretary of State and the State Department.'' 315 F.Supp.3d 34, 44
(D.D.C. 2018). The COVID-19 pandemic has caused considerable disruption
to routine visa services. This TFR will help visa-issuing consular
posts around the world allocate scarce resources to areas where
personal appearances and interviews are more beneficial relative to
other areas, including for the protection of U.S. national security.
The TFR will also protect embassy and consulate staff, visa applicants,
and U.S. citizens seeking consular services from potential exposure to
COVID-19 and the serious illness or death that may result from such
exposure.
In many countries, the consular section of the U.S. Embassy is the
United States' most public-facing direct engagement with a host
country's populace. An outbreak of COVID-19 that could be sourced to a
U.S. Embassy
[[Page 70738]]
consular section waiting room could have an impact on U.S. relations
with the host country, particularly if there were mitigating measures
that could have been taken that were not.
Recognizing that the Department's continued ability to facilitate
visa processing for applicants from any given country has a significant
impact on that country's bilateral relationship with the United States,
this TFR clearly and directly impacts foreign affairs functions of the
United States and ``implicat[es] matters of diplomacy directly.'' City
of N.Y. v. Permanent Mission of India to the U.N., 618 F.3d 172, 202
(2d Cir. 2010). This TFR reflects changes to U.S. foreign policy,
specifically in the context of U.S. visas. In acknowledging its limited
consular resources and local conditions, the Department noted that
medical infrastructure, COVID-19 cases, emergency response
capabilities, and restrictions on leaving home may affect when, and the
extent to which, Department facilities can begin to provide routine
services. This TFR, by granting greater flexibility to accommodate the
immigrant visa process in light of the dynamic conditions posed by the
COVID-19 pandemic, will allow the Department to better facilitate
immigration of foreign nationals to the United States, a key foreign
affairs function of the United States. This TFR, which temporarily
provides flexibility to consular officers to issue immigrant visas
under limited circumstances, directly relates to the Department's
authority to carry out diplomatic duties and inherently involves the
Secretary of State's foreign affairs functions.
2. Statement of Department Procedure and Practice
This TFR provides for a temporary change in the Department's
procedures and practice regarding the adjudication of certain immigrant
visa applications. The APA provides that notice and comment is not
required for ``interpretive rules, general statements of policy, or
rules of agency organization, procedure, or practice.'' 5 U.S.C.
553(b)(A). Some individuals who have been issued immigrant visas did
not use them for reasons related to the impact of the COVID-19
pandemic, including personal choice, a lack of travel options, or
official travel restrictions. Whether such individuals must appear in
person to apply for a new immigrant visa or may proceed with the
application steps without such an appearance is a matter of Department
procedure and practice.
Courts have said that substantive rules ``create new law, rights,
or duties'' or ``change existing rights and obligations,'' whereas
procedural rules do not ``alter the rights or interests of parties''
but instead only ``the manner in which the parties present themselves
or their viewpoints to the agency.'' Time Warner Cable Inc. v. FCC, 729
F.3d 137 (2d Cir. 2013) (emphasis added); see also Kaspar Wire Works,
Inc. v. Sec'y of Labor, 268 F.3d 1123, 1131-1132 (D.C. Cir. 2001)
(finding even an agency's approach of imposing per-instance penalties
to be a procedural ``agency housekeeping rule''). Whether an applicant
for an immigrant visa who had previously been issued a visa in the same
classification, pursuant to the same approved petition (or that was
automatically converted to another classification due to the death or
naturalization of the petitioner of the previously-granted immigrant
visa) must appear before a consular officer when re-applying does not
alter a visa applicant's rights or the duties of the Department, but
merely the manner in which such applicants present themselves to the
Department.
3. Good Cause To Forgo Notice and Comment Rulemaking
The APA authorizes an agency to issue a rule without prior notice
and opportunity to comment when the agency for good cause finds that
those procedures are ``impracticable, unnecessary, or contrary to the
public interest.'' 5 U.S.C. 553(b)(B). The good cause exception for
forgoing notice and comment rulemaking ``excuses notice and comment in
emergency situations, or where delay could result in serious harm.''
Jifry v. FAA, 370 F.3d 1174, 1179 (D.C. Cir. 2004). Although the good
cause exception is ``narrowly construed and only reluctantly
countenanced,'' Tenn. Gas Pipeline Co. v. FERC, 969 F.2d 1141, 1144
(D.C. Cir. 1992), the Department invokes that exception for this TFR,
for the reasons set forth below.
As discussed earlier in this preamble, as many as 49,000
individuals who were issued an immigrant visa on or after August 4,
2019, may have been unable or unwilling to travel to the United States
to seek admission as a lawful permanent resident due to extended travel
restrictions and health conditions or concerns related to the COVID-19
pandemic. Those restrictions derived from a series of Presidential
Proclamations beginning in January 2020, the National Emergency
declared in March 2020, and the Department's suspension of routine
immigrant and nonimmigrant visa services at all U.S. Embassies and
Consulates in March 2020. To partially address the concerns of the
risks of spreading the virus that causes COVID-19 while simultaneously
resuming consular operations to the greatest extent possible, the
Department is acting expeditiously to put in place temporary
flexibility to provide consular officers with discretion to waive the
personal appearance and interview requirements for certain individuals
who are submitting another application for an immigrant visa and to
allow them to affirm the accuracy of the contents of the application
under penalty of perjury rather than in person.
Consistent with the above analysis, notice and comment on this
rulemaking would be impracticable and unnecessary. The TFR is narrowly
construed to allow for the personal appearance and interview waiver of
certain applicants who previously appeared and were issued a visa and
who now seek to obtain a new visa to travel to the United States.
This TFR expires 24 months after its publication in the Federal
Register. This action is temporary in nature and includes appropriate
conditions to ensure that it is narrowly tailored to the disruption in
travel to the United States related to the COVID-19 pandemic.
Considering the public health emergency caused by the spread of the
virus associated with COVID-19, delaying implementation of this rule
until the conclusion of notice-and-comment procedures would be
impracticable and contrary to the public interest due to the need to
resume consular operations, and due to the associated COVID-19
transmission risk to consular office staff as well as the public.
4. Good Cause To Proceed With an Immediate Effective Date
The APA also authorizes agencies to make a rule effective
immediately, upon a showing of good cause, instead of imposing a 30-day
delay. 5 U.S.C. 553(d)(3). There is a less restrictive standard for the
good-cause exception to requirement for a 30-day delayed effective,
than for forgoing notice and comment rulemaking due to good cause.
Riverbend Farms, Inc. v. Madigan, 958 F.2d 1479, 1485 (9th Cir. 1992);
Am. Fed'n of Gov't Emps., AFL-CIO v. Block, 655 F.2d 1153, 1156 (D.C.
Cir. 1981); U.S. Steel Corp. v. EPA, 605 F.2d 283, 289-90 (7th Cir.
1979). An agency shows good cause for eliminating the 30-day delayed
effective date when it demonstrates urgent conditions that the rule
seeks to correct or unavoidable time limitations. U.S. Steel Corp., 605
F.2d at 290; United States v. Gavrilovic, 511 F.2d 1099, 1104 (8th Cir.
1977). For the same reasons as set forth above, the Department also
concludes that it has
[[Page 70739]]
good cause to dispense with the 30-day effective date requirement,
given that this TFR is necessary to prevent serious risk to the health
of consular officers, other embassy and consulate staff, immigrant visa
applicants, and other customers due to COVID-19.
B. Regulatory Flexibility Act/Executive Order 13272: Small Business
The Regulatory Flexibility Act, 5 U.S.C. 601 et seq., requires
agencies to perform an analysis of the potential impact of regulations
on small business entities when regulations are subject to the notice
and comment procedures of the APA. Because this TFR is exempt from
notice and comment rulemaking requirements 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). Therefore, a
regulatory flexibility analysis is not required. Furthermore, this TFR
will not have a significant economic impact on a substantial number of
small business entities.
C. Unfunded Mandates Act of 1995
The Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1501 et seq.,
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. 2
U.S.C. 1532. This TFR does not require the Department to prepare a
statement because it will not result in any such expenditure, nor will
it significantly or directly affect small governments, including State,
local, or Tribal governments, or the private sector. This TFR involves
visas for noncitizens, which are administered by federal agencies under
federal law, and it does not directly or substantially affect State,
local, or Tribal governments, or businesses.
D. Congressional Review Act of 1996
This TFR is not a major rule as defined in 5 U.S.C. 804. This TFR
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 import markets.
E. Executive Order 12866
The Department has reviewed this TFR to ensure its consistency with
the regulatory philosophy and principles set forth in Executive Order
12866. The policy announced in this TFR will further national security
by allowing consular officers to allocate scarce resources to cases
that had not been previously adjudicated and issued, where personal
appearances and interviews are relatively more beneficial. It will help
protect from the spread of COVID-19 embassy and consulate staff
worldwide, visa applicants, and U.S. citizens or others seeking
consular services who might otherwise come into proximity with
immigrant visa applicants. It will also provide time and cost savings
to those visa applicants who will not need to travel to a consular post
to provide an in-person oath. It will not result in new costs. The
Office of Management and Budget (OMB) has determined that this is a
significant regulatory action under Executive Order 12866. As such, OMB
has reviewed this regulation accordingly.
F. Executive Order 13563
Along with Executive Order 12866, Executive Order 13563 directs
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, distributed impacts, and
equity effects). The Department has reviewed the TFR under Executive
Order 13563 and has determined that this rulemaking is consistent with
the guidance therein.
G. Executive Orders 12372 and 13132--Federalism
This TFR 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. Nor will the TFR have federalism implications relevant
under Executive Orders 12372 and 13132.
H. Executive Order 13175--Consultation and Coordination With Indian
Tribal Governments
The Department 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.
I. Executive Order 12988--Civil Justice Reform
The Department has reviewed the TFR 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.
J. Paperwork Reduction Act
This TFR does not impose any new reporting or recordkeeping
requirements subject to the Paperwork Reduction Act, 44 U.S.C. Chapter
35.
List of Subjects in 22 CFR Part 42
Administrative practice and procedure, Aliens, Passports and visas.
For the reasons stated in the preamble, the Department amends 22
CFR part 42 as follows:
PART 42--VISAS: DOCUMENTATION OF IMMIGRANTS UNDER THE IMMIGRATION
AND NATIONALITY ACT, AS AMENDED
0
1. The authority citation for part 42 continues to read as follows:
Authority: 8 U.S.C. 1104 and 1182; Pub. L. 105-277, 112 Stat.
2681; Pub. L. 108-449, 118 Stat. 3469; The Convention on Protection
of Children and Co-operation in Respect of Intercountry Adoption
(done at the Hague, May 29, 1993), S. Treaty Doc. 105-51 (1998),
1870 U.N.T.S. 167 (Reg. No. 31922 (1993)); 42 U.S.C. 14901-14954
(Pub. L. 106-279, 114 Stat. 825); 8 U.S.C. 1101 (Pub. L. 111-287,
124 Stat. 3058); 8 U.S.C. 1154 (Pub. L. 109-162, 119 Stat. 2960); 8
U.S.C. 1201 (Pub. L. 114-70, 129 Stat. 561).
0
2. Effective December 13, 2021, through December 13, 2023, revise Sec.
42.62 to read as follows:
Sec. 42.62 Personal appearance and interview of applicant.
(a) Personal appearance of applicant before consular officer. Every
applicant applying for an immigrant visa other than an applicant
described in paragraph (c) of this section, including an applicant
whose application is executed by another person pursuant to Sec.
42.63(a)(2), shall be required to appear personally before a consular
officer for the execution of the application or, if in Taiwan, before a
designated officer of the American Institute in Taiwan, except that the
personal appearance of any child under the age of 14 may be waived at
the officer's discretion.
(b) Interview by consular officer. (1) Every applicant executing an
immigrant visa application other than an applicant described in
paragraph (c) of this section must be interviewed by a consular officer
who shall determine on the basis of the applicant's
[[Page 70740]]
representations and the visa application and other relevant
documentation--
(i) The proper immigrant classification, if any, of the visa
applicant, and
(ii) The applicant's eligibility to receive a visa.
(2) The officer has the authority to require that the alien answer
any question deemed material to these determinations.
(c) Certain repeat applications due to COVID-19. The personal
appearance and interview of any applicant for an immigrant visa may be
waived in the discretion of the consular officer until December 13,
2023, provided that--
(1) The applicant was issued a U.S. immigrant visa on or after
August 4, 2019, and is:
(i) Seeking an immigrant visa in the same classification and
pursuant to the same approved petition as the previously issued
immigrant visa; or
(ii) Seeking an immigrant visa pursuant to the same approved
petition as the previously issued immigrant visa but in a
classification that automatically converted from the classification of
the previously issued immigrant visa due to the death or naturalization
of the petitioner;
(2) The applicant qualifies for an immigrant visa in the same
classification as the previously issued immigrant visa, or in another
classification as a result of automatic conversion from the
classification of the previously issued immigrant visa due to the death
or naturalization of the petitioner, and pursuant to the same approved
petition as the previously issued immigrant visa; and
(3) The applicant has not undergone a change in circumstances that
could affect the applicant's eligibility for the visa.
0
3. Effective December 13, 2021, through December 13, 2023, in Sec.
42.67, add paragraph (a)(4) to read as follows:
Sec. 42.67 Execution of application, registration, and
fingerprinting.
(a) * * *
(4) Form of attestation for certain repeat applications due to
COVID-19. The swearing to or signature of an application before a
consular officer by an immigrant visa applicant may be waived in the
discretion of the consular officer until December 13, 2023, provided
the applicant is willing to affirm under penalty of perjury to the
information provided on Form DS-260 or Form DS-230.
* * * * *
0
4. Effective December 13, 2023, revise Sec. 42.62 to read as follows:
Sec. 42.62 Personal appearance and interview of applicant.
(a) Personal appearance of applicant before consular officer. Every
alien applying for an immigrant visa, including an alien whose
application is executed by another person pursuant to Sec.
42.63(a)(2), shall be required to appear personally before a consular
officer for the execution of the application or, if in Taiwan, before a
designated officer of the American Institute in Taiwan, except that the
personal appearance of any child under the age of 14 may be waived at
the officer's discretion.
(b) Interview by consular officer. (1) Every alien executing an
immigrant visa application must be interviewed by a consular officer
who shall determine on the basis of the applicant's representations and
the visa application and other relevant documentation--
(i) The proper immigrant classification, if any, of the visa
applicant, and
(ii) The applicant's eligibility to receive a visa.
(2) The officer has the authority to require that the alien answer
any question deemed material to these determinations.
Kevin E. Bryant,
Deputy Director, Office of Directives Management, U.S. Department of
State.
[FR Doc. 2021-26657 Filed 12-10-21; 8:45 am]
BILLING CODE 4710-06-P
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</html>Indexed from Federal Register on December 13, 2021.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.