[Federal Register: February 21, 2002 (Volume 67, Number 35)]
[Rules and Regulations]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Part 217
[INS No. 2188-02; AG ORDER No. 2561-2002]
Termination of the Designation of Argentina as a Participant
Under the Visa Waiver Program
AGENCY: Immigration and Naturalization Service, Justice.
ACTION: Interim rule with request for comments.
SUMMARY: The Visa Waiver Program (VWP) permits nationals from
designated countries to apply for admission to the United States for
ninety (90) days or less as visitors for business or pleasure without
first obtaining a nonimmigrant visa. On July 8, 1996, Argentina was
added as a participating country in the VWP. Due to the current
economic crisis in Argentina and the increase in the number of
Argentine nationals attempting to use the program to live and work
illegally in the United States, the Department of Justice, in
consultation with the Department of State, has determined that
Argentina's participation in the VWP is inconsistent with the U.S.
interest in enforcement of the immigration laws of the United States.
Accordingly, this rule terminates Argentina's designation as a VWP
participant. Argentine nationals who intend to travel to the United
States for legitimate business or pleasure must acquire a nonimmigrant
visa at a U.S. consulate or embassy prior to their arrival in the
DATES: Effective date: This interim rule is effective February 21,
Comment date: Written comments must be submitted on or before April
ADDRESSES: Please submit written comments to the Director, Regulations
and Forms Services Division, Immigration and Naturalization Service,
425 I Street, NW, Room 4034, Washington, DC 20536. To ensure proper
handling, please reference INS No. 2188-02 on your correspondence.
Comments may be submitted electronically to the Immigration and
Naturalization Service (Service) at firstname.lastname@example.org. Comments
submitted electronically should include the INS No. 2188-02 in the
subject heading. Comments are available for public inspection at the
above address by calling (202) 514-3048 to arrange for an appointment.
FOR FURTHER INFORMATION CONTACT: Marty Newingham, Assistant Chief
Inspector, Inspections Division, Immigration and Naturalization
Service, 425 I Street NW, Room 4064, Washington, DC 20536, telephone
number: (202) 616-7992.
What Is the VWP?
The VWP permits nationals from designated countries to apply for
admission to the United States for ninety (90) days or less as
nonimmigrant visitors for business or pleasure without first obtaining
a nonimmigrant visa from a U.S. consular officer abroad, provided that
all statutory and regulatory requirements are met. 8 U.S.C. 1187(a). If
arriving by air or sea, a VWP traveler must arrive on a carrier that
signed an agreement (signatory carrier) guaranteeing to transport
inadmissible or deportable VWP travelers out of the United States at no
expense to the United States. 8 U.S.C. 1187(e).
Why Is Argentina's Designation in the VWP Being Terminated?
Since December 2001, Argentina has been experiencing a serious
economic crisis, including defaulting on loans by foreign creditors,
devaluation of its currency, and increased levels of unemployment and
poverty. As the economic climate has deteriorated in Argentina, the
Immigration and Nationalization Service (Service) has experienced a
pronounced increase in the number of Argentine nationals attempting to
use the VWP to enter the United States to live and work illegally.
While the number of Argentine nonimmigrant travelers to the United
States declined between 1998 (518,770) and 2000 (516,153), the number
of Argentines denied admission at the border rose from 173 cases in
1998 to 529 cases in 2000. Preliminary data suggest that the number of
Argentines refused admission at the border nearly doubled from 2000 to
2001. Interior apprehensions also increased from 97 cases in 1998 to
230 cases in 2001. Since November 2001, Argentine VWP applicants for
admission have been telling U.S. immigration officers at ports-of-entry
(POEs) that they intend to reside in and seek employment in the United
States because of the poor economic situation in Argentina. Many
Argentine nationals use the VWP to obtain entry to the United States
solely for the purpose of proceeding to the Canadian border and
pursuing an asylum claim in Canada. According to Citizenship and
Immigration Canada (CIC), over the last two years, more than 2,500
Argentines have filed refugee claims in Canada after transiting the
United States under the VWP.
While the Argentine passport itself is a relatively secure
document, the process for obtaining the documents to procure a passport
lacks integrity, adding to the risk of successful organized smuggling
of aliens into the United States.
Terminating Argentina's VWP program designation, thereby
reinstating the regular nonimmigrant visa requirements for Argentine
nationals, will make it more difficult for unauthorized immigrants to
enter the United States. As with nationals of all other countries not
designated for VWP, Argentine nationals seeking to enter the United
States will have to apply for a nonimmigrant visa at a U.S. consular
office abroad, and they will be screened again by an immigration
officer at a U.S. port of entry to determine admissibility.
What Legal Authority Has the Attorney General Invoked To Terminate
Argentina's VWP Designation?
Sections 217(c)(5)(B)(i) and (c)(5)(B)(ii)(IV) of the Immigration
and Nationality Act (8 U.S.C. 1187(c)(5)(B)(i) and (c)(5)(B)(ii)(IV))
require the Attorney General, in consultation with the Secretary of
State, to terminate a country's VWP designation if he determines that a
severe economic collapse in a program country threatens the law
enforcement or security interests of the United States, including the
interest in enforcement of the immigration laws of the United States.
What Does This Rule Do?
The Attorney General, in consultation with the Department of State,
has determined that, due to the existence of the conditions set forth
in INA section 217(c)(5)(B)(ii)(IV), Argentina's participation in the
VWP threatens the United States' interest in enforcement of the
immigration laws. Accordingly, Argentine citizens are no longer
eligible to participate in the VWP. Effective February 21, 2002,
Argentina is removed as a participating country in the VWP.
What Is the Legal Status of an Argentine National Who Was Admitted
to the United States Under the VWP Before February 21, 2002 and Who
Has Time Remaining on His or Her Period of Admission?
As long as the alien lawfully gained admission under the VWP before
the effective date of this termination of designation notice, and
continues to be in compliance with the terms of his or her admission,
he or she may remain in the United States for the period of time
authorized on the date of admission.
The Department notes, however, that an alien admitted as a visitor
for business or pleasure under the VWP is not eligible for change or
extension of nonimmigrant status under the existing regulations.
Good Cause Exception
This interim rule is effective February 21, 2002, although the
Service invites post-promulgation comments and will address any such
comments in a final rule. The Service finds that good cause exists for
adopting this rule without the prior notice and comment period
ordinarily required by 5 U.S.C. 553 for the following reasons. Since
December 2001, Argentina has experienced a severe economic crisis and,
at the same time, the Service has experienced an increasing number of
Argentines attempting to use the program to work and live illegally in
the United States--thus abusing the program. Increasing program abuse
by Argentine nationals is inconsistent with the United States' interest
in enforcing its immigration laws. Reestablishing the normal
nonimmigrant visa requirements for Argentine nationals will have the
immediate effect of stemming the flow of unauthorized immigration to
the United States by such nationals. It would be contrary to the law
and the public interest to allow such a threat to the immigration
enforcement interests of the United States to continue. Because
delaying the effective date of this interim rule is impractical and
contrary to the public interest, there is good cause under 5 U.S.C. 553
to make this rule effective upon publication in the Federal Register.
Regulatory Flexibility Act
The Attorney General, in accordance with the Regulatory Flexibility
Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving
it, certifies that this rule will not have a significant economic
impact on a substantial number of small entities. Although individuals
doing business with small entities will no longer be allowed to enter
the United States without having a visa, they will be able to seek
admission to the United States by obtaining a nonimmigrant visa at a
United States consulate or embassy prior to arrival in the United
States. This action is necessary to further the law enforcement and
national security interests of the United States.
Executive Order 12866
This rule is considered by the Department of Justice, to be a
``significant regulatory action'' under Executive Order 12866, section
3(f), Regulatory Planning and Review. Accordingly, this rule has been
submitted to the Office of Management and Budget (OMB) for review.
Executive Order 13132
This rule 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 warrant the preparation of a
federalism summary impact statement.
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 or more in any one 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
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 251 of the
Small Business Regulatory Enforcement Act of 1996. 5 U.S.C. 804. 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 12988
This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of Executive Order 12988.
Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995, Public Law 104-13, 109
Stat. 163, all departments are required to submit to OMB, for review
and approval, any reporting requirements inherent in a final rule. This
rule does not impose any new reporting and recordkeeping requirements
under the Paperwork Reduction Act.
List of Subjects in 8 CFR Part 217
Air carriers, Aliens, Maritime carriers, Passports and visas.
Accordingly, 8 CFR chapter I is amended as follows:
PART 217--VISA WAIVER PROGRAM
1. The heading for part 217 is revised as set forth above.
2. The authority citation for part 217 continues to read as
Authority: 8 U.S.C. 1103, 1187; 8 CFR part 2.
Sec. 217.2 [Amended]
3. Section 217.2(a) is amended under the definition ``Designated
country'' by removing ``Argentina,'' from the list of countries.
Dated: February 15, 2002.
Larry D. Thompson,
Acting Attorney General.
[FR Doc. 02-4260 Filed 2-19-02; 2:20 pm]
BILLING CODE 4410-10-P
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