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[Federal Register: May 8, 2003 (Volume 68, Number 89)]
[Rules and Regulations]               
[Page 24638-24639]
From the Federal Register Online via GPO Access []

[[Page 24638]]



22 CFR Part 42

[Public Notice 4316]

Visas: Documentation of Immigrants--Victims of Terrorism

AGENCY: Department of State.

ACTION: Interim rule with request for comments.


SUMMARY: This rule amends the Department's regulations concerning 
immigrant visas. Recent legislation, commonly known as the USA Patriot 
Act, permits certain victims of the September 11, 2001 terrorist attack 
to file petitions for classification as special immigrants. This rule 
implements these provisions by creating a new visa classification 
``SP'' for these immigrants and sets forth the eligibility requirements 
for the issuance of an immigrant visa in that category.

DATES: Effective date: This interim rule is effective on May 8, 2003.
    Comment date: The Department will consider written comments 
submitted on or before July 7, 2003.

ADDRESSES: Please submit comments to the Chief, Legislation and 
Regulations Division, Visa Services, Department of State, 20522-0106, 
e-mail, or fax to (202) 663-3898.

Regulations Division, Visa Services, Department of State, Washington, 
DC 20522-0106, phone (202) 663-1206.


What Is the Authority for This Rule?

    On October 26, 2001, the President signed into law the ``Uniting 
and Strengthening America Act by Providing Appropriate Tools Required 
to Intercept and Obstruct Terrorism (USA Patriot) Act,'' Public Law 
107-56. Section 421 of the USA Patriot Act provides special immigrant 
status for certain victims of the terrorist attack of September 11, 
2001 who file petitions for classification under the Immigration and 
Nationality Act (INA) section 203(b)(4).

Who Is Entitled to the Special Immigrant ``SP'' Classification?

Principal Alien

    An alien is entitled to classification as an ``SP'' special 
immigrant if the alien can demonstrate to the Attorney General that
    (1) He or she is the beneficiary of a petition, filed on or before 
September 11, 2001, for classification as an immigrant under INA 203(a) 
or (b) or as a nonimmigrant under INA 101(a)(15)(K); or
    (2) He or she is the beneficiary of a labor certification 
application filed on or before September 11, 2001.
    Additionally, the alien must present evidence that the petition or 
labor certification application was revoked, terminated or rendered 
null, either before or after its approval, due directly to the attack 
of September 11, 2001, that resulted in the death or disability of the 
petitioner, beneficiary, or applicant; or caused loss of employment due 
to physical damage to, or destruction of, the business of the 
petitioner or the applicant.

Spouse or Child

    The spouse or child of an alien who meets the description of a 
``principal alien'' (whether the principal alien is living or deceased) 
may be classified as an ``SP'' if the familial relationship existed on 
September 10, 2001; and if the spouse or child is
    (1) Accompanying the principal alien; or
    (2) Following-to-join the principal alien no later than September 
11, 2003. In the case of a deceased principal alien, the requirement 
for accompanying or following to join is disregarded.

Grandparent of an Orphan

    The grandparent of a child may be classified as an ``SP'', if the 
child is left with no parents as a direct result of a terrorist attack 
on September 11, 2001, if either parent was a U.S. citizen, a U.S. 
national, or a lawful U.S. permanent resident on September 10, 2001. 
The grandparent must also demonstrate that he or she is coming to the 
U.S. to assume legal custody of the child.

What Evidence Must Be Presented To Show That the Alien Was the Victim 
of the September 11, 2001, Terrorist Attack?

    To qualify for classification as an ``SP'' immigrant, the alien 
must demonstrate to the Secretary of Homeland Security that he or she 
is a ``victim of a specified terrorist activity'', defined in the USA 
Patriot Act as any terrorist activity conducted against the Government 
or the people of the United States on September 11, 2001. The INS is 
responsible for approval of the petition, and thus responsible for 
determining if the alien has presented satisfactory evidence that he or 
she is a victim of a September 11, 2001 terrorist attack.

Are Aliens in the ``SP'' Category Subject to the Grounds Visa 

    Aliens in the ``SP'' are subject to all grounds of ineligibility 
except INA 212(a)(4).

How Will Aliens in the ``SP'' Category Be Assigned a Priority Date?

    The Immigration and Naturalization (INS) will assign a priority 
date at the time the fourth preference petition is filed. Consular 
officers will issue visas in the chronological order in which the 
petitions were submitted to the INS. However, if the annual limit under 
INA 203 is met, the alien may use the priority date of the revoked 

How Is the Department Amending Its Regulation?

    The Department is amending 22 CFR 42.32(d) by adding a new fourth 
preference classification paragraph (9) clarifying entitlement to 
special immigrant status under the USA Patriot Act. This rule 
authorizes consular officers to accord fourth preference employment-
based special immigrant classification to certain victims of the 
September 11, 2001, terrorist attacks. As with other classes of fourth 
preference employment-based immigrants, the alien must be the 
beneficiary of an approved petition.

Regulatory Analysis and Notices

Administrative Procedure Act

    The Department's implementation of this regulation as an interim 
rule is based upon the ``good cause'' exceptions found at 5 U.S.C. 
553(b)(B) and (d)(3). As the amendment to the regulation simply 
implements without interpretation a legislative mandate that provides a 
benefit to aliens by extending special immigrant status to a specific 
class of aliens, the Department has determined that it is unnecessary 
to publish a proposed rule. In view of this benefit and since the 
amendment applies to visas made available in any fiscal year beginning 
immediately, the rule will be made effective immediately upon 
publication in the Federal Register.

Regulatory Flexibility Act

    The Department of State, 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 is not expected to have a 
significant economic impact on a substantial number of small entities.

[[Page 24639]]

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 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

    Although this rule is being promulgated in conjunction with the 
Immigration and Naturalization Service, a domestic agency, 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. Therefore, in accordance with the 
letter to the Department of State of February 4, 1994 from the Director 
of the Office of Management and Budget, it does not require review by 
the Office of Management and Budget.

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 warrant the preparation of a 
federalism summary impact statement.

Paperwork Reduction Act

    This rule does not impose any new reporting or record-keeping 
requirements under the Paperwork Reduction Act.

List of Subjects in 22 CFR Part 42

    Aliens, Immigrants, Passports and visas.

For the reasons set forth in the preamble, the Department is amending 
the regulations at 22 CFR part 42 to read as follows:


1. The authority citation for part 42 is revised to read as follows:

    Authority: 8 U.S.C. 1104; Pub. L. 107-56, sec. 421.

2. Amend Sec.  42.32(d) by adding a new paragraph (9) to read as 

Sec.  42.32  Employment-based preference immigrants.

* * * * *
    (d) * * *
    (9) Certain Victims of the September 11, 2001 terrorist attacks. 
(i) Entitlement to status. An alien shall be classifiable as a special 
immigrant under INA 203(b)(4) as specified in section 421 of Public Law 
107-56, if:
    (A) The consular officer has received a petition approved by the 
INS to accord such classification, or official notification of such an 
approval, and the consular officer is satisfied from the evidence 
presented that the alien is entitled to that classification; or
    (B) The alien is the spouse or child of an alien so classified in 
paragraph (d)(9)(i) of this section and is accompanying or following to 
join the principal alien.
    (ii) Ineligibility exemption. An alien classified under paragraph 
(d)(9)(i) of this section shall not be subject to the provisions of INA 
    (iii) Priority date. Aliens entitled to status under paragraph 
(d)(9)(i) of this section shall be assigned a priority date as of the 
date the petition was filed under INA 204 for classification under 
section INA 203(b)(4) and visas shall be issued in the chronological 
order of application submission. However, in the event that the annual 
limit for immigrants under INA 203 is reached, the alien may retain the 
earlier priority date of the petition that was revoked.
* * * * *

    Dated: January 3, 2003.
Maura Harty,
Assistant Secretary for Consular Affairs, Department of State.
[FR Doc. 03-11222 Filed 5-7-03; 8:45 am]