[Federal Register Volume 68, Number 159 (Monday, August 18, 2003)]
[Rules and Regulations]
[Pages 49351-49353]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-21070]
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DEPARTMENT OF STATE
22 CFR Part 41
[Public Notice 4443]
Documentation of Nonimmigrants Under the Immigration and
Nationality Act, as Amended: Automatic Visa Revalidation
AGENCY: Department of State.
ACTION: Final rule.
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SUMMARY: The Department is adopting as final an interim rule published
in the Federal Register on March 7, 2002, amending the regulation
pertaining to Automatic Visa Revalidation, which was effective on April
1, 2002.
EFFECTIVE DATE: August 18, 2003.
FOR FURTHER INFORMATION CONTACT: Elizabeth J. Harper, Legislation and
Regulations Division, Visa Services, Department of State, Washington,
D.C. 20520-0106, (202) 663-1221, e-mail ([email protected]) or fax at
(202) 663-3898.
SUPPLEMENTARY INFORMATION: The Department published an interim rule,
Public Notice 3938 at 67 FR 45, March 7, 2002, with a request for
comments, amending part 41 of Title 22 of the Code of Federal
Regulations.
Why Was This Done?
The rule was proposed primarily because of the need for greater
screening of visa applicants in light of the events of September 11,
2001. The rule was discussed in detail in Public Notice 3938, as were
the Department's reasons for the other changes to the regulations. This
final rule adopts the interim rule without change.
What Did The Interim Rule Do?
The interim rule limited the privilege of automatic revalidation of
visas in two respects: first, the privilege is no longer available to
persons who choose to apply for a new visa while traveling temporarily
to an area covered by the automatic revalidation privilege; and second,
it is no longer available to nationals of countries that are state
sponsors of terrorism, regardless of whether such nationals apply for a
new visa while outside the United States or not. In essence, the
addition of ``applying for a visa while abroad'' as a bar against
automatic revalidation was undertaken to protect against the
possibility that the visa applicant will be found ineligible but will
have returned to the United States using the automatic revalidation
privilege while the visa application was pending. The bar against
nationals of states that have
[[Page 49352]]
been found to sponsor terrorism was added for the additional reason
that such nationals have become subject to heightened standards of
review before visa issuance.
Analysis of Comments
The proposed rule was published with a request for comments on
March 11, 2002 (67CFR45). The comment period closed May 7. The
Department received roughly 300 comments, half or more of which were
verbatim in full or in part with a sample proposed response that
circulated through the foreign student community. Most of the first
half of the letters (see ``other factors noted, below) quoted the
sample proposed response in full; many used only one or two paragraphs
from it. The Department therefore is responding to the comments
collectively, by subject matter.
Ineffectiveness and Unfairness; Inconvenience
The sample proposed response and many of the letters drawing upon
it claimed the following:
1. The amended requirement would not deter the entry of terrorists
because, in the new circumstances, any terrorists already in the United
States would simply stay here, rather than going to a neighboring
country for a new visa. Moreover, they would supply false information
if they did go abroad and applied for a visa.
2. This unfairly penalizes the innocent while doing nothing against
evil-doers.
3. It is ``not in compliance with U.S. fundamental interests--
handicapping the mutual beneficial culture, economic and personnel
exchanges between the U.S. and other countries.''
Other Factors Noted
The majority of the other half of letters included one or more of
the above viewpoints in addition to the following:
Most of their homes (in their homelands) are very far from a U.S.
consulate and it takes much longer to obtain a visa there than in
Canada or Mexico. (All, or almost all, of the commenters were from
China, India or the Philippines.) Thus, if they cannot apply for a visa
in Canada or Mexico without risking their re-admission in case of
delays, they will simply have to forego any trips home to see their
families. Some closed with the suggestion that, moreover, if they
weren't limited to single-entry, six-month visas, they wouldn't need
the automatic revalidation so why do we not simply give them more
favorable visas to begin with.
They resent the implication that they, as lawful temporary (but
long-term) residents (nonimmigrant students and workers) are a threat
to the United States.
They have to travel abroad for ``x'' reasons (international
meeting, study, research, business) and will not have time to get a
visa while at the meeting or whatever. This means that if they have not
obtained a reentry visa in Mexico or Canada before keeping that
commitment, they will have to forego the activity for which they wish
to travel abroad (finishing their studies/research abroad, presenting
their paper, etc.), or simply go home thereafter, rather than finishing
their employment/degree here. The latter course will also risk the loss
of their apartments, cars, etc., that they will have left here while on
that foreign trip. Left implicit was the idea that if the prior rule
applied, they would obtain another visa in Canada/Mexico before
travelling to wherever else and not have to face such a harrowing
choice.
Department's Response
Although sympathetic to the concerns of the commenters, the
Department must note that the privilege of automatic revalidation,
instituted some years ago as a convenience both to the travelers and to
our consular posts, is just that--a privilege. It is not a right. It is
intended primarily to recognize that persons lawfully in the United
States may have occasion to cross into and out of Canada or Mexico for
brief, casual visits or even in direct transit between one part of the
United States and another. In cases involving aliens who are within
their authorized stay in the United States but whose visas have
expired, it is not always practicable for them to apply for and obtain
a new visa to reenter the United after such a departure. Thus a
provision was made to consider their visas automatically revalidated
for purposes of facilitating such brief trips. Automatic revalidation
also became a vehicle for aliens whose visas had expired and who wanted
to travel to more distant countries not within the scope of the
automatic revalidation regulation (e.g., in Asia or Europe). Under the
old automatic revalidation regulation, such aliens could leave the
United States temporarily and apply for a new visa in a country such as
Mexico or Canada that was covered by the automatic revalidation
regulation. This was not the original intent of the regulation,
however.
These are difficult and different times, and certain conveniences
must be foregone. We are preserving the availability of automatic
revalidation for its original fundamental purpose, which is to
recognize and facilitate short-term cross-border travel. By eliminating
the possibility of automatic revalidation for persons who apply for a
visa while outside the United States, we are merely eliminating a use
of the regulation that was not central to its purpose. At the same
time, however, we are reflecting the new security environment, in which
visa processing times are longer and favorable outcomes are
significantly less certain.
For those whose complaint was that they wouldn't need that
automatic revalidation provision if we would issue them more than 6
month/one entry visas in the first place, we can only note that such
matters are governed by reciprocity as well as national security
considerations. The question of longer validity periods or multiple
versus single entry visas does not even arise if an alien's government
does not issue longer validity, multiple entry visas to U.S. citizens
for the same purpose of entry.
Preclearance Suggestion
A few letters took a different approach. They suggested that all of
the above problems could be resolved if the need for special screening
could be met by applying for preclearance (in a timely fashion) before
going to Canada or Mexico. That is, use some mechanism for such
intending traveler/visa applicants to get security cleared here in the
United States in advance of their trip to Canada or Mexico to apply for
the visa.
Department's Response
The Department concluded that this proposal is not practicable for
a number of reasons, such as the absence of any mechanism in the United
States for processing such requests in advance and the lack of
resources to establish one. More important is the fact that the time
frame for responses to clearance requests is too fluid for
realistically estimating when to begin such a process. Therefore it
cannot be implemented.
Regulatory Analysis and Notices
Since the final rule is unchanged from the interim rule, and
because none of the public comments have called them into question, the
Department reiterates the regulatory analysis and notices published in
67 FR 45 on March 7, 2002.
[[Page 49353]]
List of Subjects in 22 CFR Part 41
Aliens, Passports and visas.
0
Accordingly, the Department of State adopts as final the interim rule
published on March 7, 2002 (67 FR 10322) that revised 22 CFR 41.112(d).
Dated: June 26, 2003.
Maura Harty,
Assistant Secretary for Consular Affairs, Department of State.
[FR Doc. 03-21070 Filed 8-15-03; 8:45 am]
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