Rule2022-18810
Visas: Eligibility for Diplomatic Visa Issuance In the United States
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
August 31, 2022
Effective
August 31, 2022
Issuing agencies
State Department
Abstract
This rule is promulgated to add categories of nonimmigrants who may be issued nonimmigrant visas in the United States. This amendment will add a limited category of nonimmigrants who are born in the United States, but not subject to the jurisdiction thereof, to noncitizens maintaining A-1, A-2, C-2, C-3, G-1, G-3, G-4, or NATO nonimmigrant status and properly classifiable as such. The goal of these revisions is to codify the longstanding policy allowing such children to be issued diplomatic visas domestically to document their entitlement to A, C, G, or NATO nonimmigrant status.
Full Text
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<title>Federal Register, Volume 87 Issue 168 (Wednesday, August 31, 2022)</title>
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[Federal Register Volume 87, Number 168 (Wednesday, August 31, 2022)]
[Rules and Regulations]
[Pages 53373-53375]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-18810]
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DEPARTMENT OF STATE
22 CFR Part 41
[Public Notice: 11809]
RIN 1400-AE71
Visas: Eligibility for Diplomatic Visa Issuance In the United
States
AGENCY: Department of State.
ACTION: Final rule.
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SUMMARY: This rule is promulgated to add categories of nonimmigrants
who may be issued nonimmigrant visas in the United States. This
amendment will add a limited category of nonimmigrants who are born in
the United States, but not subject to the jurisdiction thereof, to
noncitizens maintaining A-1, A-2, C-2, C-3, G-1, G-3, G-4, or NATO
nonimmigrant status and properly classifiable as such. The goal of
these revisions is to codify the longstanding policy allowing such
children to be issued diplomatic visas domestically to document their
entitlement to A, C, G, or NATO nonimmigrant status.
DATES: This rule is effective August 31, 2022.
FOR FURTHER INFORMATION CONTACT: Andrea Lage, Acting Senior Regulatory
Coordinator, Visa Services, Bureau of Consular Affairs, 600 19th Street
NW, Washington, DC 20522, 202-485-7586, <a href="/cdn-cgi/l/email-protection#f0a6998391a2959783b08384918495de979f86"><span class="__cf_email__" data-cfemail="5107382230033436221122253025347f363e27">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
What changes to 22 CFR 41.111 does the Department propose?
This rule amends the regulation identifying categories of
nonimmigrants who may be issued nonimmigrant visas in the United
States, by adding a limited category of nonimmigrants who are born in
the United States, but not subject to the jurisdiction thereof, as they
were born to certain nonimmigrants maintaining A-1, A-2, C-2, C-3, G-1,
G-3, G-4, or NATO status and properly classifiable as such.
Prior to this amendment, the regulation identifying categories of
noncitizens authorized to obtain diplomatic nonimmigrant visas in the
United States limited issuance to noncitizens ``currently maintaining
status'' and ``properly classifiable'' in the A, C-2, C-3, G, or NATO
nonimmigrant visa categories, and required that the noncitizens have
evidence that they have ``been lawfully admitted in that status or
have, after admission, had their classification changed to that
status'' and their ``period of authorized stay in the United Sates in
that status has not yet expired.'' 22 CFR 41.111(b)(1). The Department
of State determines whether a noncitizen is maintaining A or G status,
the most common visa categories impacted for purposes of the present
rule. (See e.g., 8 CFR 214.2(a)(1) and (g)(1), which provide that A and
G nonimmigrants are admitted to the United States by the Department of
Homeland Security for the ``duration of the period for which the alien
continues to be recognized by the Secretary of State as being entitled
to that status.'') Noncitizens previously admitted to the United States
who are seeking domestic visa issuance satisfy the requirement, set out
in the amended regulation, that they have been ``admitted [to the
United States] in [A, C, G, or NATO] status'' or have ``had their
classification changed to [A, C, G, or NATO] status'' by providing
documentation from the Department of Homeland Security, such as an I-
94.
Children born in the United States to parents maintaining certain A
or G nonimmigrant status and benefiting
[[Page 53374]]
from diplomatic agent level immunities are not considered born subject
to the jurisdiction of the United States and therefore do not acquire
U.S. citizenship at birth under the Fourteenth Amendment. While not
common, certain children born to parents in C-2, C-3 and NATO status
also may not acquire U.S. citizenship at birth. This limited group of
children would therefore be present in the United States without any
documentation of their A, C-2, C-3, G or NATO nonimmigrant status. The
Department's policy is that such children should be issued
documentation of their A, C-2, C-3, G or NATO nonimmigrant status, as
provided for by law for derivatives of the principal nonimmigrant. This
amendment will codify existing policy permitting diplomatic visa
issuance in the United States to this limited group of children, whose
parents and other family members already are covered by the regulation
describing issuance of diplomatic visas in the United States. This
procedure is consistent with Department of State accreditation policy,
which requires that derivative family members of those in A and G
status possess a valid A or G visa.
In this rulemaking, the other categories of noncitizens eligible
for visa issuance in the United States remain unchanged.
Regulatory Findings
A. Administrative Procedure Act
This rule is exempt from notice and comment as it involves a
foreign affairs function of the United States. 5 U.S.C. 553(a).
An action will fall within the 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''). Cases that directly involve
the conduct of foreign affairs include rules that regulate foreign
diplomats in the United States. E.B. et al. v. Dep't of State, Civil
Action 19-2856 at 11 (D.D.C. Feb. 4, 2022); CAIR v. Trump, 471 F. Supp.
3d 25, 54 (D.D.C. 2020). For example, in City of N.Y. v. Permanent
Mission of India to the U.N., the Second Circuit found that a State
Department Federal Register Notice regarding exemptions from real
property taxes imposed by state and local governments validly invoked
the foreign affairs exemption because the regulation of
``quintessential foreign affairs functions such as diplomatic relations
and the regulation of foreign missions [. . .] clearly and directly
involves a `foreign affairs function' '' City of N.Y. v. Permanent
Mission of India to the U.N., 618 F.3d 172, 202 (2d Cir. 2010).
This rule governs the issuance of visas to foreign diplomats and
their family members in the United States and thus similarly implicates
matters of diplomacy directly. It also is about a matter that is likely
to have significant reciprocal consequences for the treatment of U.S.
diplomatic personnel overseas. In the absence of a rule governing the
domestic issuance of visas to the children of foreign mission officials
born within the United States, the mission members may be required to
travel overseas and apply for a visa for their child before reentering
the United States to continue their assignment. These children may also
face difficulties in traveling within the United States if they do not
possess a valid visa. This rule regulates the treatment of foreign
missions to allow for regular diplomatic relations between countries,
and directly invokes a foreign affairs function. Requiring foreign
mission personnel and their children to travel overseas and apply for a
new diplomatic visa similarly invites reciprocal requirements on U.S.
diplomatic personnel, significantly affecting the ability of U.S.
diplomatic personnel to engage with foreign partners and conduct the
work of foreign relations if they must depart the host country to
obtain a new visa for the child. The State Department is best
positioned to make determinations about such matters of international
reciprocity--a point acknowledged by several district courts to justify
the foreign affairs exception for rules such as this. See CAIR, 471 F.
Supp. 3d at 54 (exempting such rules from notice and comment rulemaking
``makes sense'' because ``in the diplomatic context, agency action may
be grounded in international reciprocity'').
B. 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, the Department
certifies that this rule will not have a significant economic impact on
a substantial number of small entities.
C. 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 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 involve
individuals, and does not affect, state, local, or Tribal governments,
or businesses.
D. Congressional Review Act of 1996
This rule is not a major rule as defined in 5 U.S.C. 804. 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.
E. Executive Orders 12866 (Regulatory Planning and Review) and 13563
(Improving Regulation and Regulatory Review)
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 has examined this rule in light of Executive Order 13563 and
has determined that the rulemaking is consistent with the guidance
therein. The Department has reviewed this rulemaking to ensure its
consistency with the regulatory philosophy and principles set forth in
Executive Order 12866. This rule will ensure consistency with U.S. and
international law, and the benefits of the clarity will benefit the
foreign relations of the United States. There are no anticipated costs
to the public associated with this rule. This rule has been forwarded
to the Office of Information and Regulatory Affairs and has been
designated not significant under Executive Order 12866.
[[Page 53375]]
F. Executive Orders 12372 and 13132
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.
G. Executive Order 12988
The Department has reviewed the rule considering sections 3(a) and
3(b)(2) of Executive Order 12988 to eliminate ambiguity, minimize
litigation, establish clear legal standards, and reduce burden.
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. 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 41
Aliens, Foreign officials, Immigration, Passports and Visas.
Accordingly, for the reasons set forth in the preamble, 22 CFR part
41 is amended to read as follows:
PART 41--VISAS: DOCUMENTATION OF NONIMMIGRANTS UNDER THE
IMMIGRATION AND NATIONALITY ACT, AS AMENDED
0
1. The authority citation for part 41 continues to read as follows:
Authority: 22 U.S.C. 2651a; 8 U.S.C. 1104; Pub. L. 105-277, 112
Stat. 2681-795 through 2681-801; 8 U.S.C. 1185 note (section 7209 of
Pub. L. 108-458, as amended by section 546 of Pub. L. 109-295).
0
2. Section 41.111 is amended by revising paragraph (b) to read as
follows:
Sec. 41.111 Authority to issue visa.
* * * * *
(b) Issuance in the United States in certain cases. The Deputy
Assistant Secretary for Visa Services and such officers of the
Department as the former may designate are authorized, in their
discretion, to issue nonimmigrant visas, including diplomatic visas, in
the United States, to:
(1) Qualified applicants who are currently maintaining status and
are properly classifiable in the A, C-2, C-3, G or NATO category and
intend to reenter the United States in that status after a temporary
absence abroad and who also present evidence that:
(i) They have been lawfully admitted in that status or have, after
admission, had their classification changed to that status; and
(ii) Their period of authorized stay in the United States in that
status has not expired; and
(2) Children who are born in the United States, but who are not
subject to the jurisdiction thereof because they are born to certain
qualified individuals who are currently maintaining status and are
properly classifiable in the A, C-2, C-3, G or NATO category.
(3) Other qualified applicants who:
(i) Are currently maintaining status in the E, H, I, L, O, or P
nonimmigrant category;
(ii) Intend to reenter the United States in that status after a
temporary absence abroad; and
(iii) Who also present evidence that:
(A) They were previously issued visas at a consular office abroad
and admitted to the United States in the status which they are
currently maintaining; and
(B) Their period of authorized admission in that status has not
expired.
Rena Bitter,
Assistant Secretary for Consular Affairs, Department of State.
[FR Doc. 2022-18810 Filed 8-30-22; 8:45 am]
BILLING CODE 4710-13-P
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