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[Federal Register: June 6, 2002 (Volume 67, Number 109)]
[Rules and Regulations]               
[Page 38892-38894]
From the Federal Register Online via GPO Access []



22 CFR Parts 41 and 42

[Public Notice 4028]

Documentation of Immigrants and Nonimmigrants Under the 
Immigration and Nationality Act, as Amended--Visa Fees: Interim Rule 
With Request for Comments

AGENCY: Department of State.

ACTION: Interim rule with request for comments.


SUMMARY: This rule reflects and conforms visa regulations to the 
changes made in a final rule amending the Schedule of Consular Services 
Fees published on Thursday, May 16, 2002. The latter rule waives all 
nonimmigrant visa fees for U. S. Government foreign national employees 
who are travelling to the United States on official business. It also 
provides for merging the processing and issuance fees associated with 
immigrant visas. Each of those changes necessitates the revision of 
related visa regulations. Finally, this rule eliminates a subsection 
relating to the validity of visas issued to certain residents of Hong 
Kong, because the law underlying that provision expired on January 1, 

DATES: Written comments may be submitted on or before July 8, 2002.

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

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, or fax at 
(202) 663-3898 with respect to the legal sufficiency of this rule or 
similar matters. For enquiries about the effect of this rule on 
individual cases, contact the Visa Office by e-mail at See reference to Susan Abeyta below, regarding 
comments on the changes in the Schedule of Fees.

SUPPLEMENTARY INFORMATION: A current regulation, at 22 CFR 41.107(c), 
lists the two classes of aliens who are exempt from the payment of 
nonimmigrant visa fees. This rule adds foreign employees of the U.S. 
Government who will travel to the United States on official business to 
that list.
    With respect to immigrant visas, 22 CFR 42.71(b) currently 
identifies two levels of activity for which fees are assessed. The 
first is for the processing of an application for an immigrant visa and 
the second is for the issuance of such a visa. It also sets forth 
different time frames for the collection of such individual fees. As 
the Department is combining these fees into a single fee covering all 
processing functions, editorial changes to 42.71 have become necessary. 
The timing of the payment of these fees and the basis for the refund of 
the single fee have been appropriately modified to accord with having 
one fee rather than separate fees for separate services.

Why Are These Changes Being Made?

    The changes in this interim rule are necessary, as stated above, 
because the Schedule of Consular Services Fees was recently amended in 
a final rule published May 16, 2002 (Public Notice 4016; 67 FR 34831).

Why Was the Fee Schedule Changed?

    A cost study underlies the changes in the proposed new Schedule of 
Consular Fees, which includes some modest increases in some visa fees. 
The considerations taken into account are set forth fully in the rule 
pertaining to the new Schedule. Any questions regarding the changes in 
the fee schedule should be directed to Susan Abeyta, Office of the 
Executive Director, Bureau of Consular Affairs, telefax: (202) 663-
2499; e-mail: as noted in that proposed rule.

Why Is There a Waiver of Fees for Some Nonimmigrants and Not Others?

    The Congress in a public law enacted one of the current waivers of 
fees and

[[Page 38893]]

another results from international comity. The latest addition to the 
list, made in this rule, is for non-citizen employees of the United 
States Government, who are employed abroad but coming to the United 
States on official business in connection with that employment. We 
believe such travel to be primarily in the interest of the U.S. 
Government, so that the issuance of the visa is not primarily a benefit 
to the traveler for which a fee would be charged.

Are There Any Other Changes in This Regulation?

    Yes. We are making editorial amendments in the several places where 
references to ``application and issuance fees'' appear in other 
sections of part 42, to conform with the language changes discussed 
above. We are also deleting a subsection of 22 CFR 42.72 relating to 
immigrants from Hong Kong because the underlying statute expired on 
January 1, 2002.

Regulatory Analysis and Notices

Administrative Procedure Act

    The Department is publishing this rule as a proposed rule, with a 
30-day provision for public comments, to accord with the proposed rule 
it is complementing.

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 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 of State does not consider this rule to be a 
``significant regulatory action'' under Executive Order 12866, section 
3(f), Regulatory Planning and Review. In addition, the Department is 
exempt from Executive Order 12866 except to the extent that it is 
promulgating regulations in conjunction with a domestic agency that are 
significant regulatory actions. The Department has nevertheless 
reviewed the regulation to ensure its consistency with the regulatory 
philosophy and principles set forth in that Executive Order.

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 

List of Subjects in 22 CFR Parts 41 and 42

    Aliens, Fees, Immigrants, Nonimmigrants, Passports and visas.

    Accordingly, the Department of State amends 22 CFR Chapter I as set 
forth below:


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

    Authority: 8 U.S.C. 1104; Pub. L. 105-277, 112 Stat. 2681 et 

    2. Add to Sec. 41.107(c) a new paragraph (c)(3) to read as follows:

Sec. 41.107  Visa Fees.

* * * * *
    (c) Certain aliens exempted from fees.
* * * * *
    (3) Foreign national employees of the U. S. Government who are 
travelling to the United States on official business in connection with 
that employment.
* * * * *


    3. The authority citation for part 42 continues to read as follows:

    Authority: 8 U.S.C. 1104.

    4. Revise Sec. 42.33(h)(2) to read as follows:

Sec. 42.33  Diversity Immigrants.

* * * * *
    (h) Further processing.
* * * * *
    (2) Names of visa recipients shall not be maintained in connection 
with this information and the information shall be compiled and 
maintained in such form that the identity of visa recipients cannot be 
determined therefrom.
    (i) Diversity Visa Lottery Surcharge. In addition to collecting the 
immigrant visa application processing fee, as provided in Sec. 42.71(b) 
of this part, the consular officer shall also collect from each 
applicant for a visa under the Diversity Immigrant Visa Program such 
fee for the processing of the diversity lottery as the Secretary of 
State prescribes.
    (ii) [Reserved]

    5. Revise Sec. 42.71 to read as follows:

Sec. 42.71  Authority to issue visas; visa fees.

    (a) Authority to issue visas. Consular officers may issue immigrant 
visas at designated consular offices abroad pursuant to the authority 
contained in INA 101(a)(16), 221(a), and 224. (Consular offices 
designated to issue immigrant visas are listed periodically in Visa 
Office Bulletins published at by the Department of 
State.) A consular officer assigned to duty in the territory of a 
country against which the sanctions provided in INA 243(d) have been 
invoked must not issue an immigrant visa to an alien who is a national, 
citizen, subject, or resident of that country, unless the officer has 
been informed that the sanction has been waived by INS in the case of 
an individual alien or a specified class of aliens.
    (b) Immigrant visa fees. The Secretary of State prescribes a fee 
for the processing of immigrant visa applications. An individual 
registered for immigrant visa processing at a post designated for this 
purpose by the Deputy Assistant Secretary for Visa Services must pay 
the processing fee upon being notified that a visa is expected to 
become available in the near future and being requested to obtain the 
supporting documentation needed to apply formally for a visa. A fee 
collected for the processing of an immigrant visa application is 
refundable only if the principal officer of a post or the officer

[[Page 38894]]

in charge of a consular section determines that the application was not 
adjudicated as a result of action by the U. S. Government over which 
the alien had no control and for which the alien was not responsible, 
that precluded the applicant from benefiting from the processing.

Sec. 42.72  [Amended]

    6. Amend Sec. 42.72 by removing and reserving paragraph (c).

Sec. 42.74  [Amended]

    7. Amend Sec. 42.74 by:
    a. In paragraph (a)(2)(i), (b)(iv), and (c), removing 
``statutory'', removing ``and issuance'' and adding in its place 
``processing'', and adding ``prescribed in the Schedule of Fees'' after 
``fees''; and
    b. In paragraph (b)(1)(v) add an ``s'' to ``ascertain''.

    Dated: April 19, 2002.
Mary A. Ryan,
Assistant Secretary for Consular Affairs, Department of State.
[FR Doc. 02-13001 Filed 6-5-02; 8:45 am]