Rule2022-00829
Visas: Immigrant Visas
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
January 19, 2022
Effective
January 19, 2022
Issuing agencies
State Department
Abstract
The Department of State (Department) amends its regulation governing immigrant visa fees to allow for the exemption from immigrant visa (IV) fees for certain applicants previously denied an immigrant visa pursuant to certain Presidential Proclamations issued by the previous administration and associated technical corrections.
Full Text
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<title>Federal Register, Volume 87 Issue 12 (Wednesday, January 19, 2022)</title>
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[Federal Register Volume 87, Number 12 (Wednesday, January 19, 2022)]
[Rules and Regulations]
[Pages 2703-2705]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-00829]
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DEPARTMENT OF STATE
22 CFR Parts 22 and 42
[Public Notice: 11526]
RIN 1400-AF37
Visas: Immigrant Visas
AGENCY: Department of State.
ACTION: Final rule.
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SUMMARY: The Department of State (Department) amends its regulation
governing immigrant visa fees to allow for the exemption from immigrant
visa (IV) fees for certain applicants previously denied an immigrant
visa pursuant to certain Presidential Proclamations issued by the
previous administration and associated technical corrections.
DATES: This final rule is effective on January 19, 2022.
FOR FURTHER INFORMATION CONTACT: Claire Kelly, Office of Visa Services,
Bureau of Consular Affairs, Department of State, 600 19th St. NW,
Washington, DC 20006, (202) 485-7586.
SUPPLEMENTARY INFORMATION:
I. What changes to 22 CFR 22.1, 42.71, and 42.74 does the Department
make?
The Department is amending 22 CFR 22.1 and 42.71 to exempt
applicants who were denied an IV under section 212(f) of the
Immigration and Nationality Act (INA) on or between December 8, 2017,
and January 19, 2020, due to Presidential Proclamations 9645 and 9983
(collectively, ``Proc. 9645/9983'') from the payment of immigrant visa
fees. The Department is also correcting a typographical error in 22 CFR
22.1, Item 32(e), which should refer to 22 CFR 42.71, not 22 CFR 42.74,
and correcting the header for Sec. 42.71(b)(2) to specifically refer
to adoptees. The Department is also correcting a formatting error in 22
CFR 42.74(a).
II. Policy Justification
On January 20, 2021, President Biden signed Proclamation 10141,
``Ending Discriminatory Bans on Entry to the United States'' (Proc.
10141), which revoked Proc. 9645/9983. Among other requirements, Proc.
10141 directed the Department to create ``a proposal to ensure that
individuals whose immigrant visa applications were denied on the basis
of the suspension and restriction on entry imposed by Proclamation 9645
or 9983 may have their applications reconsidered'' and that the
proposal ``shall consider whether to reopen immigrant visa applications
that were denied'' and ``whether it is necessary to charge an
additional fee to process those visa applications.''
An IV applicant who is the beneficiary of a valid immigration
petition may submit another visa application after being refused and in
most circumstances they are required to pay again the relevant
application fees. With this final rule, the Department exempts from
such fees only those IV applicants who are applying again after being
refused an IV pursuant to Proc. 9645/9983, with that limitation on
scope being justified by the President's findings articulated in Proc.
10141, as described below. Many IV applicants denied under Proc. 9645/
9983, assuming no material change in circumstances, may now be eligible
for a visa, and the Department is exempting this defined category of IV
applicants from payment of IV fees if they apply again for an immigrant
visa.
Some applicants were initially denied IVs under the Proc. 9645/9983
and additional refusal grounds. These applicants are not eligible for
the fee exemption established by this final rule, unless a consular
officer has previously determined, and informed the applicant in a visa
denial letter, that the refusal on other grounds has been overcome and
the only impediment to issuance of an IV on January 20, 2021, was Proc.
9645/9983, as reflected in a denial under section 212(f) of the INA, 8
U.S.C. 1182(f). If the other refusal grounds have not been overcome,
the applicant will be required to pay the IV fees if they wish to apply
again for an immigrant visa.
This final rule also does not apply to IV applicants who were
refused due to Proc. 9645/9983 on or after January 20, 2020, as 22 CFR
42.81(e) provides for the reconsideration of their previously filed
application, without an additional application fee. That regulation
allows IV applicants to have their case reconsidered, without payment
of an additional fee, by providing ``further evidence tending to
overcome the ground of ineligibility on which the refusal was based''
within one year of the date of refusal. The Department considers Proc.
10141, issued January 20, 2021, as the presentation of evidence
overcoming the ineligibility, thus allowing cases refused within the
prior year to be reconsidered under 22 CFR 42.81(e) without a new
application fee.
Proc. 10141 described Proc. 9645/9983 as ``just plain wrong.'' As a
means of remedying a suspension of entry under Proc. 9645/9983 that the
President found objectional as explained in Proc. 10141, the Department
exempts, from payment of immigrant visa fees, applicants who were
denied an IV on or between December 8, 2017, and January 19, 2020,
solely due to the Proc. 9645/9983 and who submits a new application for
an immigrant visa. Specifically, under this rule, these individuals
would be exempt from the applicable immigrant visa application
processing fee, as well as the affidavit of support review fee, if the
applicant would otherwise be required to pay that fee again.
III. Regulatory Findings and Impact Statements
A. Administrative Procedure Act
This rule is exempt from notice and comment under the
Administrative Procedure Act (APA) because it involves a foreign
affairs function of the United States. 5 U.S.C. 553(a)(1).
Article II of the Constitution endows the President with certain
foreign affairs powers, including the power to regulate the entry of
noncitizens to the United States. See U.S. CONST. art. II; United
States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950) (``The
exclusion of aliens is a fundamental act of sovereignty . . . [and] is
inherent in the executive power to control the foreign affairs of the
nation.''); Harisiades v. Shaughnessy, 342 U.S. 580, 588-89 (1952)
(``[A]ny policy toward aliens is vitally and intricately interwoven
with contemporaneous policies in regard to the conduct of foreign
relations [and] the war power . . . .''). An agency action that is
taken as an extension of the President's Article II foreign affairs
authority is a diplomatic function and falls within the foreign affairs
exception (hereafter, the ``exception''). See East Bay Sanctuary
Covenant v. Trump, 932 F.3d 742, 755 (9th Cir. 2018) (noting that
Article II ``vests power in the President to regulate the entry of
aliens into the United States,'' and are inherent executive powers that
constitute a foreign affairs function (citing Knauff, 338 U.S. at
542)). Visa functions specifically involve regulating the admission or
exclusion of noncitizens. Therefore,
[[Page 2704]]
visa-related regulations involve executing a constitutionally-bestowed
Executive power. See Knauff, 338 U.S. at 542. Any visa-related
regulations then fall within the exception as an extension of the
President's foreign affairs functions.
An action will fall within the foreign affairs exception if it
``clearly and directly'' involves a foreign affairs function. Capital
Area Immigrants' Rights Coal. v. Trump, 471 F. Supp. 3d 25, 53 (D.D.C.
2020) (``to be covered by the foreign affairs function exception, a
rule must clearly and directly involve activities or actions
characteristic to the conduct of international relations''). In Raoof
v. Sullivan, the U.S. District Court for the District of Columbia found
that the Department properly exercised the foreign affairs exception
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).
As in Raoof, this rule reflects changes to U.S. foreign policy,
specifically in the context of U.S. visas. In waiving certain fees for
particular visa applicants, this rule will allow the Department to
better facilitate immigration of foreign nationals to the United
States, which clearly and directly relates to a foreign affairs
function of the United States.
Given the Department's responsibility for carrying out U.S. foreign
policy, which includes the issuance of visas, and the Department's
discretionary authority to collect visa fees, the Department may exempt
categories of foreign nationals from payment of fees for an immigrant
visa application. Fees are frequently a central discussion area in
bilateral and multilateral consular engagements and have at times
become a profound diplomatic irritant. What fees we do or do not charge
a given country's citizens will directly affect the fees charged to
Americans who wish to visit that country. The Department spends
considerable time on this issue, and on ensuring reciprocal treatment
for American citizens. Visa fees have a direct diplomatic effect on our
relationship with other countries. The Secretary's exercise of a
discretionary authority to publicly identify which categories of
foreign immigrants are not required to pay immigrant visa application
fees, particularly when foreign nationality is a determinant and
reciprocal treatment at issue, clearly and directly impact foreign
affairs functions of the United States and implicates matters of
diplomacy directly. Consequently, in accordance with 5 U.S.C.
553(a)(1), is exempt from the notice and comment requirement of 5
U.S.C. 553.
B. Regulatory Flexibility Act/Executive Order 13272 (Small Business)
As this rulemaking is not subject to notice-and-comment
requirements, the Regulatory Flexibility Act does not apply.
C. Unfunded Mandates Reform Act of 1995
Section 202 of the Unfunded Mandates Reform Act of 1995 (UFMA),
Public Law 104-4, 109 Stat. 48, 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 section. This rule will
not result in any such expenditure, nor will it significantly or
uniquely affect small governments.
D. Executive Orders 12866 (Regulatory Planning and Review) and 13563
(Improving Regulation and Regulatory Review)
The Office of Management and Budget (OMB) has designated this rule
a ``significant regulatory action,'' although not economically
significant, under section 3(f) of Executive Order 12866. Accordingly,
the rule has been reviewed by OMB.
Executive Orders 12866 and 13563 direct agencies to assess the
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, distributive impacts, and equity). The
Department has reviewed this proposal to ensure consistency with those
requirements.
The Department has also considered this rule in light of Executive
Order 13563 and affirms that this rule is consistent with the guidance
therein.
E. Executive Orders 12372 and 13132 (Federalism)
This rule 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 will the rule have federalism implications
warranting the application of Executive Orders 12372 and 13132.
F. Executive Order 12988 (Civil Justice Reform)
The Department 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.
G. Executive Order 13175 (Consultation and Coordination With Indian
Tribal Governments)
The Department has determined that this rule 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 Executive Order 13175 do not apply to
this rule.
H. Paperwork Reduction Act
This rule does not impose any new reporting or recordkeeping
requirements subject to the Paperwork Reduction Act, 44 U.S.C. Chapter
35.
I. Congressional Review Act
This final rule is not a major rule as defined by the Congressional
Review Act, 5 U.S.C. 801 et seq.
List of Subjects in 22 CFR Parts 22 and 42
Consular services, Fees, Immigration, Passports and visas.
Accordingly, for the reasons stated in the preamble, and under the
authority 8 U.S.C. 1104 and 22 U.S.C. 2651(a), 22 CFR parts 22 and 42
are amended as follows:
PART 22--SCHEDULE OF FEES FOR CONSULAR SERVICES--DEPARTMENT OF
STATE AND FOREIGN SERVICE
0
1. The authority citation for part 22 continues to read as follows:
Authority: 8 U.S.C. 1101 note, 1153 note, 1157 note, 1183a
note, 1184(c)(12), 1201(c), 1351, 1351 note, 1713, 1714, 1714 note;
10 U.S.C. 2602(c); 22 U.S.C. 214, 214 note, 1475e, 2504(h), 2651a,
4206, 4215, 4219, 6551; 31 U.S.C. 9701; E.O. 10718, 22 FR 4632, 3
CFR, 1954-1958 Comp., p. 382; E.O. 11295, 31 FR 10603, 3 CFR, 1966-
1970 Comp., p. 570.
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2. Section 22.1 is amended in the table by revising Item 32(e) and
adding Items 32(f) and 34(a) to read as follows:
Sec. 22.1 Schedule of fees.
* * * * *
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Schedule of Fees for Consular Services
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Item No. Fee
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* * * * * * *
32. * * *
(e) Certain adoptee applicants for replacement No Fee.
Immigrant Visas as described in 22 CFR 42.71(b)(2).
(f) Certain immigrant visa applicants previously No Fee.
refused pursuant to Proclamation 9645 or
Proclamation 9983, as described in 22 CFR
42.71(b)(3)........................................
* * * * * * *
34. * * *
(a) Certain immigrant visa applicants previously No Fee.
refused solely pursuant to Proclamation 9645 or
Proclamation 9983, as described in 22 CFR
42.71(b)(3)........................................
* * * * * * *
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PART 42--VISAS: DOCUMENTATION OF IMMIGRANTS UNDER THE IMMIGRATION
AND NATIONALITY ACT, AS AMENDED
0
3. 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).
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4. Section 42.71 is amended by revising paragraph (b) to read as
follows:
Sec. 42.71 Authority to issue visas; visa fees.
* * * * *
(b) Immigrant visa fees--(1) Payment of fees. The Secretary of
State prescribes a fee for the processing of immigrant visa
applications. Except as provided in paragraphs (b)(2) and (3) of this
section, an individual registered for immigrant visa processing at a
post designated for this purpose by the Deputy Assistant Secretary for
Visa Services must pay the fee upon being notified that a visa is
expected to become available in the near future, and upon being
requested to obtain the supporting documentation needed to apply
formally for a visa, in accordance with instructions received with such
notification. The fee must be paid before an applicant at a post so
designated will receive an appointment to appear and make application
before a consular officer. Applicants at a post not yet so designated
will pay the fee immediately prior to formal application for a visa. A
fee collected for the processing of an immigrant visa application is
refundable only if the principal officer of a post or the officer in
charge of a consular section determines that the application was not
adjudicated as a result of action by the U.S. Government over which the
alien had no control and for which the alien was not responsible, which
precluded the applicant from benefitting from the processing, or as
provided in paragraph (b)(2) of this section.
(2) Waiver or refund of fees for replacement immigrant visas for
adoptees. The consular officer shall waive the application processing
fee for a replacement immigrant visa or, upon request, refund such a
fee where already paid, if the consular officer is satisfied that the
alien, the alien's parent(s), or the alien's representative has
established that:
(i) The prior immigrant visa was issued on or after March 27, 2013,
to an alien who has been lawfully adopted, or who is coming to the
United States to be adopted, by a United States citizen;
(ii) The alien was unable to use the original immigrant visa during
the period of its validity as a direct result of extraordinary
circumstances, including the denial of an exit permit; and
(iii) The inability to use the visa was attributable to factors
beyond the control of the adopting parent or parents and of the alien.
(3) Exemption from fees for immigrant visa applicants previously
refused solely pursuant to Proclamation 9645 or Proclamation 9983. An
immigrant visa applicant shall be exempt from the application
processing fee and the affidavit of support review fee, if the
applicant was previously denied an immigrant visa on or between
December 8, 2017, and January 19, 2020; the sole ground of
ineligibility was based on Proclamation 9645 or 9983; and the applicant
is applying again for an immigrant visa. This paragraph (b)(3) provides
only for a one-time exemption of the applicable fees per applicant.
0
5. Section 42.74 is amended by revising paragraph (a) to read as
follows:
Sec. 42.74 Issuance of new, replacement, or duplicate visas.
(a) New immigrant visa for a special immigrant under INA
101(a)(27)(A) and (B). The consular officer may issue a new immigrant
visa to a qualified alien entitled to status under INA 101(a)(27)(A) or
(B), provided that:
(1) The alien establishes that the original visa has been lost,
mutilated, or has expired; or that the alien will be unable to use it
during the period of its validity; and
(2) The alien pays anew the application processing fees prescribed
in the Schedule of Fees (22 CFR 22.1); and
(3) The consular officer ascertains whether the original issuing
office knows of any reason why a new visa should not be issued.
* * * * *
Kevin E. Bryant,
Deputy Director, Office of Directives Management, U.S. Department of
State.
[FR Doc. 2022-00829 Filed 1-18-22; 8:45 am]
BILLING CODE 4710-06-P
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</html>Indexed from Federal Register on January 19, 2022.
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.