Rule2023-11602
Visas: Immigrant Visas; Certain Afghan Applicants
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
June 1, 2023
Effective
June 1, 2023
Issuing agencies
State Department
Abstract
This final rule (TFR) temporarily amends Department of State (Department) regulations to provide that Afghan nationals applying for an immigrant visa as an immediate relative as defined in the INA or in a family preference immigrant visas category are exempt from the requirement to pay an immigrant visa (IV) application processing fee and a domestic Affidavit of Support review fee.
Full Text
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<title>Federal Register, Volume 88 Issue 105 (Thursday, June 1, 2023)</title>
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[Federal Register Volume 88, Number 105 (Thursday, June 1, 2023)]
[Rules and Regulations]
[Pages 35738-35741]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-11602]
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DEPARTMENT OF STATE
22 CFR Parts 22 and 42
[Public Notice: 12017]
RIN 1400-AF60
Visas: Immigrant Visas; Certain Afghan Applicants
AGENCY: Department of State.
ACTION: Temporary final rule.
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SUMMARY: This final rule (TFR) temporarily amends Department of State
(Department) regulations to provide that Afghan nationals applying for
an immigrant visa as an immediate relative as defined in the INA or in
a family preference immigrant visas category are exempt from the
requirement to pay an immigrant visa (IV) application processing fee
and a domestic Affidavit of Support review fee.
DATES: This rule is effective June 1, 2023, until December 31, 2024.
FOR FURTHER INFORMATION CONTACT: Andrea Lage, Acting Senior Regulatory
Coordinator, Visa Services, Bureau of Consular Affairs, Department of
State; telephone (202) 485-7586, <a href="/cdn-cgi/l/email-protection#75231c0614271012063506011401105b121a03"><span class="__cf_email__" data-cfemail="75231c0614271012063506011401105b121a03">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. What changes to 22 CFR 22.1 and 42.71 does this TFR make?
The Department is temporarily amending 22 CFR 22.1 and 42.71 to
exempt Afghan nationals from the requirement to pay the IV application
processing and domestic Affidavit of Support review fees if they are
applying for an IV as an immediate relative as defined in section
201(b)(2)(A)(i) of the Immigration and Nationality Act (INA), 8 U.S.C.
1151(b)(2)(A)(i) or in a family preference IV category as provided in
section 203(a) of the Immigration and Nationality Act (INA), 8 U.S.C.
1153(a).
II. Why is the Department making these changes?
Since the fall of the Afghan government in August 2021, the United
States has welcomed more than 88,000 Afghans through Operation Allies
Welcome (OAW), an all-of-government effort to relocate to the United
States citizens and lawful permanent residents who wished to leave
Afghanistan, along with special immigrant visa (SIV) applicants,
immediate family members of SIV applicants, and other Afghans at risk.
Many additional Afghans who did not relocate to the United States
through OAW but who qualify for an IV as an immediate relative or in a
family preference IV category because they have qualifying
relationships with a U.S. citizen or U.S. lawful permanent resident and
seek to immigrate to the United States.
On August 31, 2021, the U.S. Embassy in Kabul, Afghanistan
suspended operations indefinitely.\1\ Since that time, the Department
has continued its efforts to assist U.S. citizens, lawful permanent
residents, and other Afghans at risk through its Office of the
Coordinator for Afghan Relocation Efforts. In the absence of regular
consular operations in Afghanistan, Afghans applying for an immigrant
visa must apply and personally appear at a U.S. Embassy or consulate in
another country.
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\1\ Security Message: Suspension of Operations, <a href="https://af.usembassy.gov/security-message-suspension-of-operations/">https://af.usembassy.gov/security-message-suspension-of-operations/</a> (August
31, 2021).
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Under section 222(a) of the INA, 8 U.S.C. 1152(a), every noncitizen
applying for an immigrant visa is required to submit an application in
the form and manner and at such place as
[[Page 35739]]
prescribed by regulation. In accordance with the Department's
regulations, an individual applying for an immigrant visa must pay the
fee prescribed by the Secretary of State for the processing of
immigrant visa applications, subject to limited, enumerated exceptions.
22 CFR 42.71; see also 22 CFR 22.1. Immigrant visa application
processing fees are listed in Item 32 within the Department's Schedule
of Fees for Consular Services (``Schedule of Fees''), published at 22
CFR 22.1. The immigrant visa application processing fee for an
individual applying as an immediate relative or for a visa in a family
preference IV category is $325.
Section 212(a)(4)(C)(ii) of the INA, 8 U.S.C. 1182(a)(4)(C)(ii),
provides that the person petitioning for an applicant's admission, and
any additional or alternative sponsor, as appropriate, must execute an
affidavit of support (Form I-864) as described in section 213A of the
INA, 8 U.S.C. 1183a. The National Visa Center reviews, for clerical
completeness, Form I-864 and related documents for applicants who are
the beneficiary of a Form I-130, Petition for Alien Relative, submitted
to USCIS. The Department charges a fee for Affidavit of Support review
when the affidavit is reviewed domestically. The current domestic
Affidavit of Support review fee is $120.
This temporary final rule will provide for fee exemptions to
qualified applicants through December 31, 2024, and is designed to help
Afghan nationals resettle and, in many cases, reunite with family
members in the United States. These exemptions reflect the Department's
ongoing commitment to resettle Afghan nationals at risk due to the fall
of the Afghan government, as they will facilitate the reunification of
Afghans with their qualifying family members in the United States.
These fee exemptions are not retroactive.
The Department is publishing this rule as a temporary final rule,
which will automatically expire on December 31, 2024. The Department
anticipates that this duration is a sufficient time period for Afghan
nationals who are at risk and who wish to immigrate to the United
States to benefit from the fee relief. This rule applies to
applications dated after the effective date of this rulemaking.
III. Regulatory Findings
A. Administrative Procedure Act
As this rule involves a foreign affairs function of the United
States, it is excepted from both the delayed effective date and notice
and comment requirements of 5 U.S.C. 553(a)(1).
Under 5 U.S.C. 553(a)(1), notice-and-comment requirements of the
Administrative Procedure Act do not apply ``to the extent there is
involved . . . a military or foreign affairs function of the United
States.'' This exemption applies when the rule in question ``is clearly
and directly involved in a foreign affairs function.'' Mast Indus. v.
Regan, 596 F. Supp. 1567, 1582 (C.I.T. 1984) (quotation marks omitted).
In addition, although the text of the Administrative Procedure Act does
not require an agency invoking this exemption to show that such
procedures may result in ``definitely undesirable international
consequences,'' some courts have required such a showing. E.g., Yassini
v. Crosland, 618 F.2d 1356, 1360 n.4 (9th Cir. 1980). This rule
satisfies both standards.
This rulemaking to exempt Afghan nationals from certain IV fees
clearly and directly involves foreign affairs, as the U.S. government's
commitment and efforts in furtherance of Operation Allies Welcome,
Enduring Welcome, and successor operations to relocate and resettle
Afghans who have provided valuable assistance to the U.S. government
over the past two decades, and their family members, reflects one of
the U.S. government's most significant foreign policy goals in recent
years. These measures specifically will significantly ease the
financial burden of Afghan applicants seeking to join U.S. citizen or
lawful permanent resident family members in the United States, clearly
and directly reflecting U.S. foreign policy as the Department seeks to
uphold its commitments to assist many Afghans and their family members
who have assisted the U.S. government. Visa applicants from Afghanistan
are currently unable to apply in their home country due to the
suspension of operations of the U.S. Embassy in Kabul, and must travel
to other locations, often at their own cost and risk. For such
individuals, particularly those of whom are applying for immediate
relative and family preference immigrant visas, the payment of visa
processing fees and fees for domestic processing of the Affidavit of
Support, are significant, with each applicant paying $445 in immigrant
visa processing fees alone, in addition to other associated required
fees not addressed by this rulemaking, including for example the cost
of a required medical examination and travel expenses to the United
States. These significant costs can serve as a barrier to applicants
completing their applications and being able to travel to the United
States to reunite with family members, and consequently, this
rulemaking to exempt such applicants from certain fees clearly and
directly involves a foreign affairs function.
Similarly, solicitation of public notice and comment to this
foreign policy exercise would have definitely undesirable international
consequences. Foreign governments or parts thereof may have interests
in this rule as a matter of their foreign policy goals with respect to
U.S. efforts to relocate and resettle Afghan Allies and other Afghans
at risk, many of whom must transit and complete visa processing in
third countries in order to immigrate to the United States. Foreign
governments or entities, including entities that oppose U.S.
objectives, may seek to disrupt and potentially harm the bilateral
relationships between the U.S. and such countries through participation
in the notice and comment process. As a DOJ representative stated
during hearings on the Administrative Procedure Act, ``[a] requirement
of public participation in . . . promulgation of rules to govern our
relationships with other nations . . . would encourage public
demonstrations by extremist factions which might embarrass foreign
officials and seriously prejudice our conduct of foreign affairs.''
Administrative Procedure Act: Hearings on S. 1663 Before the Subcomm.
on Admin. Practice & Procedure of the S. Comm. on the Judiciary, 88th
Cong. at 363 (1964). The time necessary to solicit and respond to
public comments on the rule would further delay State's ability to
exempt these individuals from immigrant visa fees, significantly
hampering State's ability to advance the described foreign policy
objectives of upholding the U.S. government's commitment to the Afghan
people.
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. As this TFR is not required to be
published for notice and comment under 5 U.S.C. 553, it is exempt from
the Regulatory Flexibility Act (5 U.S.C. 603 and 604). Nonetheless, as
this action only directly impacts a small subset of immigrant visa
applicants, the Department certifies that this rule will not have a
significant economic impact on a substantial number of small entities.
[[Page 35740]]
C. Congressional Review Act of 1996
In the Department's view, 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 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.
D. Paperwork Reduction Act
This TFR does not impose any new reporting or record-keeping
requirements subject to the Paperwork Reduction Act, 44 U.S.C. 35.
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. This rule will temporarily exempt certain Afghan applicants from
the payment of the IV application processing and domestic Affidavit of
Support review fees. There are no anticipated costs to the public
associated with this rule. The Office of Information and Regulatory
Affairs has designated this rule as non-significant.
F. Executive Order 13175
The Department has determined 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.
G. Executive Order 13563
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.
H. Other
The Department has also considered this TFR in light of the
Unfunded Mandates Reform Act of 1995 and Executive Orders 12372, 13132,
and 13272; and affirms this rule is consistent with the applicable
mandates or guidance therein.
List of Subjects
22 CFR Part 22
Fees; Foreign Service; Immigration; Passports and visas.
22 CFR Part 42
Administrative practice and procedure; Aliens; Fees; Foreign
officials; 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.
0
2. Effective June 1, 2023, through December 31, 2024, Sec. 22.1 is
amended by adding Item 32(g) and Item 34(b) to the table to read as
follows:
Sec. 22.1 Schedule of fees.
* * * * *
Schedule of Fees for Consular Services
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Item No. Fee
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* * * * * * *
32. Immigrant Visa Application Processing Fee
(per person):
* * * * * * *
(g) Afghan immediate relative and family NO FEE.
preference visa applications.
* * * * * * *
34. Affidavit of Support Review (only when $120.
reviewed domestically).
* * * * * * *
(b) Afghan immediate relative and family NO FEE.
preference visa applications.
* * * * * * *
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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).
0
4. Effective June 1, 2023, through December 31, 2024, Sec. 42.71 is
amended by adding paragraph (b)(4) to read as follows:
Sec. 42.71 Authority to issue visas; visa fees.
* * * * *
(b) * * *
(4) Exemption from fees for Afghan immediate relative and family
preference immigrant visa applicants. Consular officers shall exempt
from immigrant visa fees Afghan applicants
[[Page 35741]]
for immediate relative and family preference immigrant visas.
Hugo Rodriguez,
Principal Assistant Secretary for Consular Affairs, Department of
State.
[FR Doc. 2023-11602 Filed 5-31-23; 8:45 am]
BILLING CODE 4710-06-P
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