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[Federal Register: February 15, 2001 (Volume 66, Number 32)]
[Rules and Regulations]               
[Page 10363-10364]
From the Federal Register Online via GPO Access []



22 CFR Parts 41 and 42

[Public Notice 3570]

Documentation of Immigrants and Nonimmigrants Under the 
Immigration and Nationality Act, as Amended--Refusal of Individual 

AGENCY: Department of State.

ACTION: Interim rule with request for comments.


SUMMARY: This rule adds two additional grounds of ineligibility for a 
visa for certain nonimmigrants to the listing of those serving as bases 
for the refusal of nonimmigrant visas by consular officers. It adds one 
of those to the regulation relating to crewmen. Moreover, the rule adds 
another relatively new restriction on the place of application for 
aliens who have overstayed the allowable period in the United States. 
Finally, in the interest of consistency between the rules relating to 
nonimmigrants and immigrants, it also adds the appropriate listing of 
bases for refusal of immigrant visas. There are some editorial changes 
to the current nonimmigrant rule on refusals for the purpose of 
clarification and to incorporate by reference the essence of the 
legislation underlying the procedures described therein.

DATES: Effective February 15, 2001. Written comments may be submitted 
through April 16, 2001.

ADDRESSES: Written comments may be submitted, in duplicate, to the 
Chief, Legislation and Regulations Division, Visa Services, Department 
of State, Washington, D.C. 20520-0106.

FOR FURTHER INFORMATION CONTACT: H. Edward Odom, Chief, Legislation and 
Regulations Division, Visa Services, Department of State, Washington, 
D.C. 20520-0106, (202) 663-1204, e-mail, or fax at 
(202) 663-3898.

SUPPLEMENTARY INFORMATION: Public Laws 101-649, Immigration Act of 
1990, and 104-298, the Illegal Immigration Reform and Immigrant 
Responsibility Act of 1996, added two new grounds of ineligibility to 
those already in the Immigration and Nationality Act, as amended, 
(INA). Each is classification-specific, not a generic ineligibility 
such as most of those found in INA 212(a). It also added a provision 
invalidating the visa of a person who had overstayed the authorized 
period of stay in the United States and requiring such an alien to 
apply in his/her home country for a new visa except under certain 
authorized circumstances (INA 222(g)).

What Classes Are Affected?

    The first of the new ineligibilities relates to crewmen. As set 
forth in INA 214(f), it makes an alien unclassifiable as a crewman 
under INA 101(a)(15)(D) if the alien intends to land for the purpose of 
joining a vessel or aircraft during a labor dispute where there is a 
strike or lockout involving the employer and the bargaining unit of the 
employer. This provision is also reflected in an amendment of 22 CFR 
41.41, Crewmen, which is included herein.
    The other such provision, which is found in INA 214(l)--the second 
(l) in INA 214--relates to students. It denies an alien classification 
as a student under INA 101(a)(15)(F)(1) for the purpose of study at a 
public elementary or publicly-funded adult education program, or at a 
public secondary school unless the total period of stay in the latter 
educational institution is less than one year and the student has fully 
reimbursed the school for the costs of such education. Students who 
have been admitted in F-1 status for attendance at private schools and 
then transfer to a public school have, under this provision, violated 
their status unless the student has reimbursed the school as noted 
above. The seriousness of this provision is reinforced in a new INA 
212(a)(6)(G), which makes an individual who violated student status 
under INA 214(l) inadmissible for five years after the date of the 
violation. Although not specifically included in the regulation 
covering INA 212(a)(6)(G) at 22 CFR 40.67, the terms of INA 214(l) were 
described in the supplementary information in the interim rule 
published at 62 FR 67564, December 29, 1997.
    The essence of the INA 222(g) provision is set forth above.

So Why This Rule Now?

    This rule is being promulgated for the primary purpose of adding 
those INA 214(f) and (l) citations to an existing regulation, 22 CFR 
41.121, which lists the permissible grounds for denial of a 
nonimmigrant visa application. The necessity for so doing also provides 
an opportunity to include editorial revisions in paragraph (b) for the 
purpose of greater clarity and noting by reference the statutory basis 
for the refusal procedures, and to add, again by reference, the gist of 
INA 214(f) to the crewman regulations. No substantive changes to past 
and/or current procedures are intended by the revisions in subsection 
    The refusal regulation with respect to immigrant visa applicants 
equivalent to section 41.121, namely 22 CFR 42.81, does not now 
correspondingly specify the applicable grounds of refusal in immigrant 
cases. This rule inserts such data in the interest of consistency.
    Finally, the regulation at 41.122, Grounds of Revocation of a Visa, 
does not now include INA 222(g), which is being added by reference in 
this rule.

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). The provisions of law being referred to in this rule became 
effective on January 28, 1991, in the case of a crewman proceeding to a 
job which is involved in a strike or lockout, and, in the case of 
student visa abusers, on November 29, 1996. More importantly, the rule 
makes no substantive changes in visa operations.

Regulatory Flexibility Act

    Pursuant to Sec. 605 of the Regulatory Flexibility Act, the 
Department has assessed the potential impact of this rule, and the 
Assistant Secretary for Consular Affairs hereby certifies that 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

[[Page 10364]]

companies to compete with foreign-based companies in domestic and 
export markets.

Executive Order 12866

    The Department of State does not consider this rule to be a 
``significant regulatory action'' under Executive Order 12866, section 
3(f), Regulatory Planning and Review, and the Office of Management and 
Budget has waived its review process under section (6)(a)(3)(A).

Executive Order 131332

    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 

List of Subjects in 22 CFR Part 41

    Aliens, Nonimmigrants, Passports and visas.

    Accordingly, the Department of State amends 22 CFR chapter I as 

PART 41--[Amended]

    1. The authority citation for Part 41 continues to read as follows:

    Authority: 8 U.S.C. 1104.

    2. Revise Sec. 41.41(a) to read as follows:

Sec. 41.41  Crewmen.

    (a) Alien classifiable as crewman. An alien is classifiable as a 
nonimmigrant crewman upon establishing to the satisfaction of the 
consular officer the qualifications prescribed by INA 101(a)(15)(D), 
provided that the alien has permission to enter some foreign country 
after a temporary landing in the United States, unless the alien is 
barred from such classification under the provisions of INA 214(f).
* * * * *

    3. Revise Sec. 41.121(a) and (b) to read as follows:

Sec. 41.121  Refusal of individual visas.

    (a) Grounds for refusal. Nonimmigrant visa refusals must be based 
on legal grounds, such as one or more provisions of INA 212(a), INA 
212(e), INA 214(b), (f) or (l) (as added by Section 625 of Pub. L. 104-
208), INA 221(g), or INA 222(g) or other applicable law. Certain 
classes of nonimmigrant aliens are exempted from specific provisions of 
INA 212(a) under INA 102 and, upon a basis of reciprocity, under INA 
212(d)(8). When a visa application has been properly completed and 
executed in accordance with the provisions of INA and the implementing 
regulations, the consular officer must either issue or refuse the visa.
    (b) Refusal procedure. (1) When a consular officer knows or has 
reason to believe a visa applicant is ineligible and refuses the 
issuance of a visa, he or she must inform the alien of the ground(s) of 
ineligibility (unless disclosure is barred under INA 212(b)(2) or (3)) 
and whether there is, in law or regulations, a mechanism (such as a 
waiver) to overcome the refusal. The officer shall note the reason for 
the refusal on the application. Upon refusing the nonimmigrant visa, 
the consular officer shall retain the original of each document upon 
which the refusal was based, as well as each document indicating a 
possible ground of ineligibility, and should return all other 
supporting documents supplied by the applicant.
    (2) If an alien, who has not yet filed a visa application, seeks 
advice from a consular officer, who knows or has reason to believe that 
the alien is ineligible to receive a visa on grounds which cannot be 
overcome by the presentation of additional evidence, the officer shall 
so inform the alien. The consular officer shall inform the applicant of 
the provision of law or regulations upon which a refusal of a visa, if 
applied for, would be based (subject to the exception in paragraph 
(b)(1) of this section). If practicable, the consular officer should 
request the alien to execute a nonimmigrant visa application in order 
to make a formal refusal. If the individual fails to execute a visa 
application in these circumstances, the consular officer shall treat 
the matter as if a visa had been refused and create a record of the 
presumed ineligibilty which shall be filed in the consular office.
* * * * *

    4. Amend Sec. 41.122(a)(1) by adding before the semicolon ``, or 
was issued a visa in contravention of INA 222(g)''.


    5. The authority citation for Part 42 continues to read as follows:

    Authority: 8. U.S.C. 1104.

    6. Revise Sec. 42.81(a) to read as follows:

Sec. 42.81  Procedure in refusing individual visas.

    (a) Issuance or refusal mandatory. When a visa application has been 
properly completed and executed before a consular officer in accordance 
with the provisions of INA and the implementing regulations, the 
consular officer must either issue or refuse the visa under INA 212(a) 
or INA 221(g) or other applicable law. Every refusal must be in 
conformance with the provisions of 22 CFR 40.6.
* * * * *

Dated: December 19, 2001.
Mary A. Ryan,
Assistant Secretary for Consular Affairs.
[FR Doc. 01-3754 Filed 2-14-01; 8:45 am]

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