[Federal Register Volume 76, Number 81 (Wednesday, April 27, 2011)]
[Rules and Regulations]
[Pages 23477-23479]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-10077]
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DEPARTMENT OF STATE
22 CFR Parts 41 and 42
RIN 1400-AC87
[Public Notice: 7426]
Visas: Documentation of Nonimmigrants Under the Immigration and
Nationality Act, as Amended
AGENCY: State Department.
ACTION: Final rule.
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SUMMARY: This rule changes Department regulations to broaden the
authority of
[[Page 23478]]
a consular officer to revoke a visa at any time subsequent to issuance
of the visa, in his or her discretion. These changes to the
Department's revocation regulations expand consular officer visa
revocation authority to the full extent allowed by statute.
Additionally, this rule change allows consular officers and designated
officials within the Department to revoke a visa provisionally while
considering a final visa revocation.
DATES: This rule is effective April 27, 2011.
FOR FURTHER INFORMATION CONTACT: Lawrence B. Kurland, Jr., Legislation
and Regulations Division, Visa Services, Department of State, 2401 E
Street, NW., Room L-603D, Washington, DC 20520-0106, (202) 663-1260, e-
mail ([email protected]).
SUPPLEMENTARY INFORMATION:
Why is the Department promulgating this rule?
On occasion, after a visa has been issued, the Department or a
consular officer may determine that a visa should be revoked when
information reveals that the applicant was originally or has since
become ineligible or may be ineligible to possess a U.S. visa. Section
221(i) of the Immigration and Nationality Act (8 U.S.C. 1201(i)) (INA)
authorizes the Secretary and consular officers to revoke a visa in
their discretion.
Current regulations limit the circumstances in which consular
officers may revoke visas. In light of security concerns, this
amendment grants additional authority to consular officers to revoke
visas, consistent with the statutory provisions of the INA. Although
this rule eliminates the provisions that permit reconsideration of a
revocation, it also allows for the provisional revocation of a visa
when there is a need for further consideration of information that
might lead to a final revocation. In cases where the person subject to
a provisional revocation is found to be eligible for the visa, the visa
will be reinstated with no need for reapplication. However, with the
exception of provisional revocations, an applicant whose visa has been
revoked must apply for another visa, at which time his or her
eligibility for the visa will be adjudicated.
Regulatory Findings
Administrative Procedure Act
This regulation involves a foreign affairs function of the United
States and, therefore, in accordance with 5 U.S.C. 553(a)(1), is not
subject to the rule making procedures set forth at 5 U.S.C. 553.
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 at sections 603 and 604 of
the Regulatory Flexibility Act (5 U.S.C. 603 and 604). Nonetheless,
consistent with section 605(b) of the Regulatory Flexibility Act (5
U.S.C. 605(b)), the Department certifies that this rule will not have a
significant economic impact on a substantial number of small entities.
This rule regulates individual aliens who hold nonimmigrant or
immigrant visas, including employment-based visas. Because section
221(i) of the INA already grants the Secretary and consular officers
authority to revoke visas in their discretion (an authority already
exercised by the Secretary and designees), and this rule simply lifts a
regulatory restriction on consular officers to exercise the same
authority, the Department expects that any effect of this rule on small
entities will be minimal.
The Unfunded Mandates Reform Act of 1995
Section 202 of the Unfunded Mandates Reform Act of 1995, Public Law
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 sector. This rule will not result in any
such expenditure, nor will it significantly or uniquely affect small
governments.
The Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by 5 U.S.C. 804, for
purposes of congressional review of agency rulemaking under the Small
Business Regulatory Enforcement Fairness Act of 1996, Public Law 104-
121. 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.
Executive Order 12866
The Department of State has reviewed this rule to ensure its
consistency with the regulatory philosophy and principles set forth in
Executive Order 12866 and has determined that the benefits of the
proposed regulation justify its costs. The Department does not consider
the rule to be an economically significant action within the scope of
section 3(f)(1) of the Executive Order since it is not likely to have
an annual effect on the economy of $100 million or more or to adversely
affect in a material way the economy, a sector of the economy,
competition, jobs, the environment, public health or safety, or state,
local or tribal governments or communities.
Executive Order 13563
The Department of State has considered this rule in light of
Executive Order 13563, dated January 18, 2011, and affirms that this
regulation is consistent with the guidance therein.
Executive Orders 12372 and 13132: Federalism
This regulation 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 rule have federalism
implications warranting the application of Executive Orders No. 12372
and No. 13132.
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.
Paperwork Reduction Act
This rule does not impose information collection requirements under
the provisions of 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,
students.
Accordingly, for the reasons set forth in the preamble, 22 CFR
parts 41 and 42 are amended as follows:
[[Page 23479]]
PART 41--VISAS: DOCUMENTATION OF NONIMMIGRANTS UNDER THE
IMMIGRATION AND NATIONALITY ACT, AS AMENDED
0
1. The authority citation for section 41 continues to read as follows:
Authority: 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 41.122 is revised to read as follows:
Sec. 41.122 Revocation of visas.
(a) Grounds for revocation by consular officers. A consular
officer, the Secretary, or a Department official to whom the Secretary
has delegated this authority is authorized to revoke a nonimmigrant
visa at any time, in his or her discretion.
(b) Provisional revocation. A consular officer, the Secretary, or
any Department official to whom the Secretary has delegated this
authority may provisionally revoke a nonimmigrant visa while
considering information related to whether a visa holder is eligible
for the visa. Provisional revocation shall have the same force and
effect as any other visa revocation under INA 221(i).
(c) Notice of revocation. Unless otherwise instructed by the
Department, a consular officer shall, if practicable, notify the alien
to whom the visa was issued that the visa was revoked or provisionally
revoked. Regardless of delivery of such notice, once the revocation has
been entered into the Department's Consular Lookout and Support System
(CLASS), the visa is no longer to be considered valid for travel to the
United States. The date of the revocation shall be indicated in CLASS
and on any notice sent to the alien to whom the visa was issued.
(d) Procedure for physically canceling visas. A nonimmigrant visa
that is revoked shall be canceled by writing or stamping the word
``REVOKED'' plainly across the face of the visa, if the visa is
available to the consular officer. The failure or inability to
physically cancel the visa does not affect the validity of the
revocation.
(e) Revocation of visa by immigration officer. An immigration
officer is authorized to revoke a valid visa by physically canceling it
in accordance with the procedure described in paragraph (d) of this
section if:
(1) The alien obtains an immigrant visa or an adjustment of status
to that of permanent resident;
(2) The alien is ordered excluded from the United States under INA
236, as in effect prior to April 1, 1997, or removed from the United
States pursuant to INA 235;
(3) The alien is notified pursuant to INA 235 by an immigration
officer at a port of entry that the alien appears to be inadmissible to
the United States, and the alien requests and is granted permission to
withdraw the application for admission;
(4) A final order of deportation or removal or a final order
granting voluntary departure with an alternate order of deportation or
removal is entered against the alien;
(5) The alien has been permitted by DHS to depart voluntarily from
the United States;
(6) DHS has revoked a waiver of inadmissibility granted pursuant to
INA 212(d)(3)(A) in relation to the visa that was issued to the alien;
(7) The visa is presented in connection with an application for
admission to the United States by a person other than the alien to whom
the visa was issued;
(8) The visa has been physically removed from the passport in which
it was issued; or
(9) The visa has been issued in a combined Mexican or Canadian B-1/
B-2 visa and border crossing identification card, and the immigration
officer makes the determination specified in Sec. 41.32(c) with
respect to the alien's Mexican citizenship and/or residence or the
determination specified in Sec. 41.33(b) with respect to the alien's
status as a permanent resident of Canada.
PART 42--VISAS: DOCUMENTATION OF IMMIGRANTS UNDER THE IMMIGRATION
AND NATIONALITY ACT, AS AMENDED
0
3. The authority citation for section 42 continues to read as follows:
Authority: 8 U.S.C. 1104 and 1182; Pub. L. 105-277; Pub. L. 108-
449; 112 Stat. 2681-795 through 2681-801; 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)); The Intercountry
Adoption Act of 2000, 42 U.S.C. 14901-14954, Pub. L. 106-279.
0
4. Section 42.82 is revised to read as follows:
Sec. 42.82 Revocation of visas.
(a) Grounds for revocation by consular officers. A consular
officer, the Secretary, or any Department official to whom the
Secretary has delegated this authority is authorized to revoke an
immigrant visa at any time, in his or her discretion.
(b) Provisional revocation. A consular officer, the Secretary, or
any Department official to whom the Secretary has delegated this
authority may provisionally revoke an immigrant visa while considering
information related to whether a visa holder is eligible for the visa.
Provisional revocation shall have the same force and effect as any
other visa revocation under INA 221(i).
(c) Notice of revocation. Unless otherwise instructed by the
Department, a consular officer shall, if practicable, notify the alien
to whom the visa was issued that the visa was revoked or provisionally
revoked. Regardless of delivery of such notice, once the revocation has
been entered into the Department's Consular Lookout and Support System
(CLASS), the visa is no longer to be considered valid for travel to the
United States. The date of the revocation shall be indicated in CLASS
and on any notice sent to the alien to whom the visa was issued.
(d) Procedure for physically canceling visas. An immigrant visa
that is revoked shall be canceled by writing or stamping the word
``REVOKED'' plainly across the face of the visa, if the visa is
available to the consular officer. The failure or inability to
physically cancel the visa does not affect the validity of the
revocation.
Dated: April 18, 2011.
Janice L. Jacobs,
Assistant Secretary for Consular Affairs, Department of State.
[FR Doc. 2011-10077 Filed 4-26-11; 8:45 am]
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