Proposed Rule2023-05410
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
March 17, 2023
Issuing agencies
State Department
Abstract
The Department of State ("Department") proposes to amend its regulation governing immigrant visas by removing the section which allows a consular officer to conduct an informal evaluation of the family members of an immigrant visa applicant to identify potential grounds of ineligibility. The existing regulation was promulgated in 1952, at a time when a consular officer could more readily assess a family member's qualification for a visa. Assessing eligibility for an immigrant visa is now a complex task, and not one which can be accomplished accurately with an informal evaluation.
Full Text
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<title>Federal Register, Volume 88 Issue 52 (Friday, March 17, 2023)</title>
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[Federal Register Volume 88, Number 52 (Friday, March 17, 2023)]
[Proposed Rules]
[Pages 16384-16386]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-05410]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 88, No. 52 / Friday, March 17, 2023 /
Proposed Rules
[[Page 16384]]
DEPARTMENT OF STATE
22 CFR Part 42
[Public Notice: 11604]
RIN 1400-AE83
Visas: Immigrant Visas
AGENCY: Department of State.
ACTION: Proposed rule.
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SUMMARY: The Department of State (``Department'') proposes to amend its
regulation governing immigrant visas by removing the section which
allows a consular officer to conduct an informal evaluation of the
family members of an immigrant visa applicant to identify potential
grounds of ineligibility. The existing regulation was promulgated in
1952, at a time when a consular officer could more readily assess a
family member's qualification for a visa. Assessing eligibility for an
immigrant visa is now a complex task, and not one which can be
accomplished accurately with an informal evaluation.
DATES: Written comments must be received on or before May 16, 2023.
ADDRESSES: Interested parties may submit comments to the Department by
any of the following methods:
<bullet> Internet (preferred): At <a href="http://www.regulations.gov">www.regulations.gov</a>, you can
search for the document using Docket Number DOS-2022-0046 or RIN 1400-
AE83.
<bullet> Email: Claire Kelly, Office of Visa Services, Bureau of
Consular Affairs, U.S. Department of State, <a href="/cdn-cgi/l/email-protection#4c1a253f2d1e292b3f0c3f382d3829622b233a"><span class="__cf_email__" data-cfemail="8bdde2f8ead9eeecf8cbf8ffeaffeea5ece4fd">[email protected]</span></a>.
Public Participation
All interested parties are invited to participate in this
rulemaking by submitting written views and comments on all aspects of
this proposed rule. Comments must be submitted in English or an English
translation must be provided. Comments that will provide the most
assistance to the Department of State in implementing this change will
reference a specific portion of the proposed rule, explain the reason
for any recommended change, and include information that supports the
recommendation.
Instructions: If you submit a comment, you must include the agency
name and RIN 1400-AE83 for this proposed rulemaking in the title or
body of the comment. Regardless of the method used for submitting
comments or material, all submissions will be posted, without change,
to the Federal eRulemaking Portal at <a href="http://www.regulations.gov">http://www.regulations.gov</a>, and
will include any personal information you provide. Therefore, because
all submissions will be public, you may wish to consider limiting the
amount of personal information that you provide in any voluntary public
comment submission. The Department of State may withhold from public
viewing information provided in comments that it determines may
infringe privacy rights of an individual or is offensive. For
additional information, please read the Privacy Act notice available in
the footer at <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
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 42.68 does the Department propose?
The Department proposes eliminating 22 CFR 42.68 in its entirety.
Under 22 CFR 42.68 consular officers may, in certain circumstances,
arrange for an informal evaluation of the family members of an
immigrant visa applicant. Specifically, if a principal immigrant visa
applicant will precede the family members in traveling to the United
States, 22 CFR 42.68 allows a consular officer to arrange for an
informal examination of the family members to make a preliminary
determination of any ground of ineligibility on their part to receive a
visa. Under the current regulation, the principal applicant must be
informed of any preliminary finding of ineligibility, and a
determination in connection with an informal examination carries no
assurance that the individual will be eligible for an immigrant visa in
the future.
II. Why is the Department proposing this rule?
A. Increasing Complexity in Evaluating Immigrant Visa Applicants Makes
Informal Evaluation an Inappropriate Use of Resources
The regulation, 22 CFR 42.68, was among the regulations promulgated
by the Department in 1952 after the enactment of the Immigration and
Nationality Act. Since 1952, however, the immigrant visa process
generally and the scope of grounds on which an applicant may be
ineligible for an immigrant visa has grown increasingly more complex,
rendering the concept of an informal evaluation as outdated and
impractical for a consular officer to complete with accuracy.
In 1952, a noncitizen wishing to immigrate completed Form FS-256a,
and a consular officer then assessed their eligibility during an
interview. This simple form requested basic biographical information
and included a statement affirming that the noncitizen was not
inadmissible. Since 1952, Congress has enacted numerous laws imposing
new immigration ineligibilities.\1\ Today, a noncitizen applying for an
immigrant visa completes form DS-260, submits biometrics and supporting
documents, including police certificates and the results of a medical
examination, and the consular officer interviews the applicant and vets
the applicant through a series of electronic national security and
criminal vetting systems to identify potential grounds of
ineligibility.\2\ The results of these vetting measures are one of the
central factors upon which a consular officer relies to determine
whether the applicant is ineligible for a visa. Without a complete
application for a visa with the required supporting documents, the
Department lacks sufficient information for a thorough assessment of
potential ineligibilities that would make an informal evaluation
useful.
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\1\ See, for example, the Immigration Reform and Control Act
(IRCA) (100 Stat. 3359); the 1990 Immigration Act (104 Stat. 4978);
the Illegal Immigration Reform and Immigrant Responsibility Act
(IIRIRA) (110 Stat. 3009).
\2\ Consistent with the Enhanced Border Security and Visa Entry
Reform Act (EBSVERA) (116 Stat. 543).
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The informal evaluation that was created in 1952 does not provide a
complete picture of an individual's
[[Page 16385]]
eligibility for a visa. Evolving national security priorities,
particularly since September 11, 2001, have resulted in significant
modifications to the visa screening enterprise. The current enterprise
includes numerous concurrent interagency reviews for potential
derogatory information of both principal and derivative immigrant visa
applicants. Given the broad range of potential ineligibilities, and the
layered vetting processes in which applicants are reviewed, a consular
officer cannot at the time of the informal evaluation make an accurate
assessment as to the noncitizen's eligibility for a visa and
consequently cannot fully advise a principal applicant on the
eligibility of their family members.
If the Department were to update the informal evaluation process to
provide a more informed and thorough review of a principal applicant's
family members, such that a consular officer could provide an accurate
preliminary assessment of visa eligibility, such changes would require
reallocation of already limited resources of both the Department and
other agencies to review applicants who have not--and potentially will
not--apply for a visa, potentially requiring significant changes to
Department systems that facilitate vetting of applicants based only on
their submission of a completed visa application. Moreover, even with a
comprehensive slate of information regarding a visa applicant, an
assessment of eligibility can only account for their potential
eligibility at that time, and is not a reliable indicator of whether
they would be eligible in the future if and when they submit a visa
application. Consequently, an informal evaluation is an inefficient use
of State resources, and an unreliable tool for prospective applicants.
The authority provided for in 22 CFR 42.68 has not been used in
recent years. Given the difficulty in accurately predicting an
applicant's visa eligibility through an informal process, the
Department is unable to allocate its limited resources toward offering
a service that has been rendered obsolete.
B. Current Application of 22 CFR 42.68
To determine whether and how often the informal evaluation
authority has been used, the Visa Office consulted with management in
the immigrant visa units of five of the largest-volume immigrant visa
processing posts: Ciudad Juarez, Manila, Santo Domingo, Mumbai, and
Dhaka. Each of the five posts reported they have no record of ever
providing this service. Given that these five posts process 32 percent
of the immigrant visas worldwide, and they have no recent information
regarding this service, we are confident that eliminating this service
will not cause undue hardship to applicants or result in significant
impacts to applicants.
In light of the complexity required to evaluate a noncitizen's
eligibility for an immigrant visa, and limited resources to reliably
assess eligibility absent a visa application, the Department seeks to
eliminate this regulation.
III. Regulatory Findings
Administrative Procedure Act
This proposed rule involves the Department amending visa policy,
which is a foreign affairs function of the United States and,
therefore, in accordance with 5 U.S.C. 553(a)(1), would be exempt from
the notice and comment requirements of 5 U.S.C. 553. Notwithstanding
the applicability of the foreign affairs exception to this rule, the
Department is providing 60 days for public comment on this proposed
rule's elimination of 22 CFR 42.68.
Regulatory Flexibility Act/Executive Order 13272 (Small Business)
As this rulemaking is not required to be published for notice and
comment 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 rulemaking will not have a significant economic
impact on a substantial number of small entities.
Unfunded Mandates Reform Act of 1995
Section 202 of the Unfunded Mandates Reform Act of 1995 (UFMA),
Pub. L. 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 proposed rule will not
result in any such expenditure, nor will it significantly or uniquely
affect small governments.
Executive Orders 12866 (Regulatory Planning and Review) and 13563
(Improving Regulation and Regulatory Review)
Executive Orders (E.O.) 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 reviewed this proposal to ensure consistency with those
requirements. OMB reviewed this proposed rule and designated as a
``significant regulatory action'' under section 3(f) of E.O. 12866.
Accordingly, OMB has reviewed this proposed regulation.
As noted above, the Visa Office consulted with management in the
immigrant visa units of five of the largest-volume immigrant visa
processing posts: Ciudad Juarez, Manila, Santo Domingo, Mumbai, and
Dhaka. Each of the five posts reported they do not provide this
service. Given that these five posts process 32 percent of the
immigrant visas worldwide, and they have no information regarding the
provision of this service, we are confident that eliminating this
regulation will not result in significant impacts.
The Department has also considered this proposed rule in light of
Executive Order 13563 and affirms that this proposed rule is consistent
with the guidance therein.
Executive Orders 12372 and 13132 (Federalism)
This proposed 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 proposed rule have
federalism implications warranting the application of Executive Orders
No. 12372 and No. 13132.
Executive Order 12988 (Civil Justice Reform)
The Department has reviewed the proposed rule 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.
Executive Order 13175 (Consultation and Coordination With Indian Tribal
Governments)
The Department has determined that this proposed 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 proposal.
Paperwork Reduction Act
This proposed rule does not impose any new reporting or
recordkeeping requirements subject to the Paperwork Reduction Act, 44
U.S.C. chapter 35.
[[Page 16386]]
List of Subjects in 22 CFR Part 42
Immigration, Passports and visas.
For the reasons stated in the preamble, the Department proposes to
amend 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).
Sec. 42.68 [Removed and reserved]
0
2. Remove and reserve Sec. 42.68.
Julie Stufft,
Deputy Assistant Secretary for Visa Services, Consular Affairs,
Department of State.
[FR Doc. 2023-05410 Filed 3-16-23; 8:45 am]
BILLING CODE 4710-06-P
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