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Department of State Requires
Personal Interviews July 7, 2003 The US Department of State has issued an interim rule further restricting the types of cases where personal interviews for nonimmigrant applications may be waived. The interim rule, published at 68 FR 40127, appears below: ************************************************ [Federal Register: July 7, 2003 (Volume 68, Number 129)] [Rules and Regulations] [Page 40127-40129] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr07jy03-4] -------------------------------------------------
DEPARTMENT OF STATE
22 CFR Part 41
[Public Notice 4393]
VISAS: Documentation of Nonimmigrants Under the Immigration and
Nationality Act, as Amended; Personal Appearance
AGENCY: Department of State.
ACTION: Interim rule with request for comments.
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SUMMARY: This interim rule brings Department regulations into line
with, and allows further expansion of, post-9/11 policy guidance issued
by the Department that has increasingly restricted the number of
instances in which the interview of a nonimmigrant visa applicant may
be waived. The regulation significantly reduces the number and kind of
situations in which the usual requirement that a nonimmigrant visa
applicant appear before an officer for a personal interview may be
waived by the consular officer, while making express the Department's
authority to set interview policies centrally. The Department is taking
this regulatory action in order to further develop the new legal
framework necessary to support a series of steps undertaken in order to
more adequately ensure the security and integrity of nonimmigrant visa
application and issuance procedures. Upon publication of this rule,
certain visa applicants who previously may have had their personal
appearance before a consular officer for the purpose of applying for a
nonimmigrant visa waived will be required by regulation to make such an
appearance to be interviewed. In practice, however, many of these
applicants are already being interviewed, based on internal Department
guidance or decisions made at consular posts.
DATES: Effective date: This rule is effective August 1, 2003.
Comment date: Written comments may be submitted within 60 days of
the date of publication of this document in the Federal Register.
ADDRESSES: Written comments may be submitted, in duplicate, to the
Legislation and Regulations Division, Visa Services, Department of
State, Washington, DC 20520-0106, or by e-mail to visaregs@state.gov.
FOR FURTHER INFORMATION CONTACT: Elizabeth J. Harper, Legislation and
Regulations Division, Visa Services, Department of State, Washington,
DC 20520-0106, (202) 663-1221.
SUPPLEMENTARY INFORMATION:
What Is the Origin of the Waiver of Appearance Rule?
The Immigration and Nationality Act, section 222(e), requires that
all applicants for immigrant visas appear personally before a consular
officer, but leaves the question of personal appearance of nonimmigrant
visa applicants to be defined by regulation. The Department's
regulations state a usual requirement of personal appearance by
nonimmigrant visa applicants, but for at least forty years have defined
a range of applicants whose appearance may be waived by the consular
officer--i.e., granted a ``personal appearance waiver'' or ``PAW.''
What Change Is Being Made?
Because of heightened security concerns in the period immediately
following September 11, the Department undertook a thorough review of
its visa application and issuance procedures. As a result of that
review, consular officers have begun to interview a much larger
percentage of nonimmigrant visa applicants than they did prior to
September 11, both in response to Department internal guidance and as a
result of decisions made at consular posts. Because of the continuing
need to ensure that the visa process is focused on security concerns,
the Department believes it is desirable to codify the changed practice
into regulation and to provide a regulatory basis for further adjusting
the interview exemptions through centralized direction, as appropriate.
This rule is intended to reflect the current scope and use of consular
and Departmental personal appearance waiver authority. This amended
version of the regulation generally permits waivers of the interview by
consular officers in significantly fewer kinds of cases than the
regulation being amended. The one exception is that the regulation
raises the age of children who may qualify for consular officer
interview waivers from age 14 to age 16. Consular officers will no
longer have broad discretion under regulation to grant PAWs with
respect to applicants for B, C-1, H-1, I, J and crew visas. In certain
circumstances, however, officers will have discretion to grant PAWs for
applicants for any category of nonimmigrant visa who have previously
been issued a visa in the same category for which they are applying.
The amended regulation continues consular authority for granting PAWs
to diplomats and officials of international organizations. Further, it
will allow the Deputy Assistant Secretary for Visa Services to waive
the personal appearance requirement in specific situations, i.e., when
the Department determines, centrally, that the waiver would not be
inconsistent with homeland security interests. Thus, the regulation
effectively shifts to the Department authority to make a number of
interview waiver decisions previously made at consular posts.
Which Applicants May Still Benefit From a Consul's Authority To Waive
Personal Appearance?
Under the revised regulation, a consular officer may waive the
personal appearance of a visa applicant in six specific categories.
These are: (1) Children age 16 and under; (2) persons age 60 years or
older; (3) most of the applicants within a class of nonimmigrants
classifiable under the visa symbols A, C-2, C-3, G, or NATO (with the
exception of attendants, servants and personal employees); (4) aliens
applying for diplomatic or official visas, as defined in 22 CFR 41.26
and
[[Page 40128]]
41.27, respectively; (5) applicants who within twelve months of the
expiration of their previous visa are seeking re-issuance of a
nonimmigrant visa in the same classification at the consular post of
the alien's usual residence, and for whom the consular officer has no
indication of any noncompliance with U.S. immigration laws and
regulations, and (6) aliens for whom a waiver of personal appearance is
warranted in the national interest or because of unusual circumstances,
as determined by the consular officer.
Experience shows that applicants in the first and second categories
pose very little if any threat to our security. Persons in the third
and fourth categories, diplomats and officers or employees of
international organizations and their immediate families are ordinarily
very well known to embassy staff members, or there is extensive
background information available concerning them. In addition,
international law, comity and reciprocity with regard to official
personnel may appropriately be taken into account. In the fifth
category, the previous personal appearance by and interview of the
applicant would make it unlikely that further appearance and interview
would reveal any basis for refusal. Applicants in the sixth category,
except for those cases based on medical issues, will generally be
important contacts of embassy officers and therefore well known to the
embassy. It is important to understand, however, that, although the
consular officer has discretion to waive personal appearance for an
individual falling in one of the six categories, waiver is never
required.
What Other Waiver Authority May Be Exercised?
In addition to the waiver authority granted to consular officers in
the six specific categories listed above, as mentioned, the Deputy
Assistant Secretary for Visa Services will have the authority to waive
the requirement for personal appearance for a class of individuals when
the Deputy Assistant Secretary is satisfied that the waiver is in the
national interest or involves unusual circumstances.
Regulatory Analysis and Notices
Administrative Procedure Act
The Department is publishing this rule as an interim rule, with a
60-day provision for post-promulgation public comments, based on the
``good cause'' exceptions set forth at 5 U.S.C. 553(b)(3)(B) and
553(d)(3). It is dictated by the necessity of additional controls over
the documentation and entry of aliens at this time, in light of the
continuing threat of terrorist attacks on the United States and, as
noted, is bringing the Department's regulation into line with practices
that are already generally in effect through the discretionary exercise
of existing waiver authority.
Regulatory Flexibility Act
Pursuant to section 605 of the Regulatory Flexibility Act, the
Department has assessed the potential impact of this rule, and the
Department of State hereby certifies that it is not expected to have a
significant economic impact on a substantial number of small entities.
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local, and
tribal governments, in the aggregate, or by the private sector, of $100
million in any year and it will not significantly or uniquely affect
small governments. Therefore, no actions were deemed necessary under
the provisions of the Unfunded Mandates Reform Act of 1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 804 of the
Small Business Regulatory Enforcement Act of 1996. 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 export markets.
Executive Order 12866
The Department does not consider this rule a ``significant
regulatory action'' under Executive Order 12866, section 3(f)
Regulatory Planning and Review. Nevertheless, the Department has
submitted the rule to the Office of Management and Budget for its
review.
Executive Order 13132
This regulation will not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with section 6
of Executive Order 13132, it is determined that this rule does not have
sufficient federalism implications to require consultations or warrant
the preparation of a federalism summary impact statement.
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.
List of Subjects in 22 CFR Part 41
Aliens, Passports and Visas.
0
Accordingly, for the reasons discussed in the preamble, Part 41 is
amended as follows:
PART 41--[AMENDED]
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1. The authority citation for part 41 continues to read:
Authority: 8 U.S.C. 1104; Public Law 105-277, 112 Stat. 2681 et
seq.
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2. Revise section 41.102 to read as follows:
Sec. 41.102 Personal appearance of applicant.
(a) Personal appearance before a consular officer is required
except as otherwise provided in this section. Except when the
requirement of personal appearance has been waived pursuant to
paragraph (b) or (c) of this section, each applicant for a nonimmigrant
visa must personally appear before and be interviewed by a consular
officer, who shall determine on the basis of the applicant's
representations, the visa application and other relevant documentation:
(1) The proper nonimmigrant classification, if any, of the alien;
and
(2) The alien's eligibility to receive a visa.
(b) Waivers of personal appearance by consular officers. Unless
otherwise instructed by the Deputy Assistant Secretary of State for
Visa Services, a consular officer may waive the requirement of personal
appearance in the case of any alien who the consular officer concludes
presents no national security concerns requiring an interview and who:
(1) Is a child 16 years of age or under;
(2) Is a person 60 years of age or older;
(3) Is within a class of nonimmigrants classifiable under the visa
symbols A-1, A-2, C-2, C-3, G-1, G-2, G-3, G-4, NATO-1, NATO-2, NATO-3,
NATO-4, NATO-5, or NATO-6 and who is seeking a visa in such
classification;
(4) Is an applicant for a diplomatic or official visa as described
in Sec. Sec. 41.26 and 41.27 of this chapter, respectively;
(5) Is an applicant who within 12 months of the expiration of the
applicant's previously issued visa is seeking re-issuance of a
nonimmigrant visa in the same classification at the consular post of
the applicant's usual
[[Page 40129]]
residence, and for whom the consular officer has no indication of visa
ineligibility or noncompliance with U.S. immigration laws and
regulations; or
(6) Is an alien for whom a waiver of personal appearance is
warranted in the national interest or because of unusual circumstances,
as determined by the consular officer.
(c) Waivers of personal appearance by the Deputy Assistant
Secretary of State. The Deputy Assistant Secretary for Visa Services
may waive the personal appearance before a consular officer of an
individual applicant or a class of applicants if the Deputy Assistant
Secretary finds that the waiver of personal appearance is warranted in
the national interest or because of unusual circumstances and that
national security concerns do not require an interview.
(d) Unusual circumstances. As used in this section, unusual
circumstances shall include, but not be limited to, an emergency or
unusual hardship.
Dated: June 26, 2003.
Maura Harty,
Assistant Secretary for Consular Affairs, Department of State.
[FR Doc. 03-17044 Filed 7-3-03; 8:45 am]
BILLING CODE 4710-06-P
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