Rule2023-26907
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
December 7, 2023
Effective
January 8, 2024
Issuing agencies
State Department
Abstract
The Department of State ("Department") is amending 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 potential qualification for a visa without a formal visa application. Assessing eligibility for an immigrant visa is now a more 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 234 (Thursday, December 7, 2023)</title>
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[Federal Register Volume 88, Number 234 (Thursday, December 7, 2023)]
[Rules and Regulations]
[Pages 85109-85110]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-26907]
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DEPARTMENT OF STATE
22 CFR Part 42
[Public Notice: 12224]
RIN 1400-AE83
Immigrant Visas
AGENCY: Department of State.
ACTION: Final rule.
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SUMMARY: The Department of State (``Department'') is amending 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 potential qualification for a visa without a formal
visa application. Assessing eligibility for an immigrant visa is now a
more complex task and not one which can be accomplished accurately with
an informal evaluation.
DATES: This final rule is effective on January 8, 2024.
FOR FURTHER INFORMATION CONTACT: Claire Kelly, Office of Visa Services,
Bureau of Consular Affairs, Department of State; telephone (202) 485-
7586, <a href="/cdn-cgi/l/email-protection#1046796371427577635063647164753e777f66"><span class="__cf_email__" data-cfemail="f4a29d8795a6919387b48780958091da939b82">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: The Department published a notice of
proposed rulemaking, Public Notice 11604 at 88 FR 16384 (Mar. 17, 2023)
(hereafter ``proposed rule''), with a request for comments, proposing
to amend Part 42 of Title 22 of the Code of Federal Regulations. The
rule will eliminate 22 CFR 42.68 in its entirety. The regulatory
amendment was discussed in detail in the proposed rule, and that
discussion is adopted by reference in this final rule. The Department
received two responsive comments, both in support of eliminating 22 CFR
42.68. The Department is now promulgating a final rule with no changes
from the proposed rule. This rule results in no change for applicants,
as the authority granted by 22 CFR 42.68 was no longer used by consular
officers.\1\
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\1\ See the proposed rule for further discussion.
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Analysis of Comments
The proposed rule was published in the Federal Register on March
17, 2023. The comment period closed May 16, 2023. The Department
received two responsive comments, both in favor of the proposed
elimination of 22 CFR 42.68, and one non-responsive comment.
One of the two responsive comments advocated for replacing 22 CFR
42.68 with ``supportive and accessible eligibility screenings for
noncitizens seeking visas,'' while the other comment only expressed its
support for the proposed elimination. The Department has considered
these comments. Considering the complexity required to evaluate a
noncitizen's eligibility for a visa, and limited resources to reliably
assess eligibility absent a visa application, the Department is unable
to offer any eligibility screenings. Noncitizens who wish to receive a
nonimmigrant or immigrant visa must formally apply for a visa to allow
a consular officer to assess their eligibility for the visa.
Regulatory Findings
A. Administrative Procedure Act
As this rule involves amending visa policy, which is a foreign
affairs function of the United States, it is exempt from both the
delayed effective date and notice and comment requirements of 5 U.S.C.
553 per subsection (a)(1). Notwithstanding the applicability of the
foreign affairs exception to this rule, the Department, for its own
benefit, sought public comment on the proposed elimination of 22 CFR
42.68. See, e.g., Hoctor v. U.S. Dep't of Agric., 82 F.3d 165, 171-72
(7th Cir. 1996) (observing that there is nothing in the APA that
forbids an agency's use of notice-and-comment procedures even if not
required under the APA, and that courts should attach no weight to an
agency's varied approaches involving similar rules). Though this rule
is not subject to 5 U.S.C. 553(d), the Department is also choosing to
delay the effective date of this rule for 30 days.
B. Regulatory Flexibility Act
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
[[Page 85110]]
Flexibility Act. Nonetheless, as this rule eliminates a currently
unused authority, the Department certifies that this rule will not have
a significant economic impact on a substantial number of small
entities.
C. Congressional Review Act
This rule is not a major rule as defined by the Congressional
Review Act (5 U.S.C. 801 et seq.). 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 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.
D. Executive Orders 12866, 13563, and 14094
Notwithstanding that the policies of the Secretary of State in
exercising their authority to conduct international affairs through the
granting or refusal of visas to foreign nationals is a foreign affairs
function, the Department has submitted this rule to OIRA for review and
OIRA has deemed this rule to be not significant. The Department has
also considered this final rule in light of E.O. 13563 and E.O. 14094
and affirms that this rule is consistent with the guidance therein.
As noted in the NPRM, 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.
E. Executive Order 13175
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 Executive Order 13175 do not apply to
this rulemaking.
F. 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.
G. Other
The Department has also considered this rule under 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 in 22 CFR Part 42
Immigration, Passports, Visas.
Accordingly, for the reasons set forth in the preamble, 22 CFR 42
is amended 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 M. Stufft,
Deputy Assistant Secretary for Visa Services, Consular Affairs,
Department of State.
[FR Doc. 2023-26907 Filed 12-6-23; 8:45 am]
BILLING CODE 4710-06-P
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