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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

[Federal Register: August 18, 2003 (Volume 68, Number 159)]
[Rules and Regulations]               
[Page 49351-49353]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18au03-18]                         

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF STATE

22 CFR Part 41

[Public Notice 4443]

 
Documentation of Nonimmigrants Under the Immigration and 
Nationality Act, as Amended: Automatic Visa Revalidation

AGENCY: Department of State.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Department is adopting as final an interim rule published 
in the Federal Register on March 7, 2002, amending the regulation 
pertaining to Automatic Visa Revalidation, which was effective on April 
1, 2002.

EFFECTIVE DATE: August 18, 2003.

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 (harperb@state.gov) or fax at 
(202) 663-3898.

SUPPLEMENTARY INFORMATION: The Department published an interim rule, 
Public Notice 3938 at 67 FR 45, March 7, 2002, with a request for 
comments, amending part 41 of Title 22 of the Code of Federal 
Regulations.

Why Was This Done?

    The rule was proposed primarily because of the need for greater 
screening of visa applicants in light of the events of September 11, 
2001. The rule was discussed in detail in Public Notice 3938, as were 
the Department's reasons for the other changes to the regulations. This 
final rule adopts the interim rule without change.

What Did The Interim Rule Do?

    The interim rule limited the privilege of automatic revalidation of 
visas in two respects: first, the privilege is no longer available to 
persons who choose to apply for a new visa while traveling temporarily 
to an area covered by the automatic revalidation privilege; and second, 
it is no longer available to nationals of countries that are state 
sponsors of terrorism, regardless of whether such nationals apply for a 
new visa while outside the United States or not. In essence, the 
addition of ``applying for a visa while abroad'' as a bar against 
automatic revalidation was undertaken to protect against the 
possibility that the visa applicant will be found ineligible but will 
have returned to the United States using the automatic revalidation 
privilege while the visa application was pending. The bar against 
nationals of states that have

[[Page 49352]]

been found to sponsor terrorism was added for the additional reason 
that such nationals have become subject to heightened standards of 
review before visa issuance.

Analysis of Comments

    The proposed rule was published with a request for comments on 
March 11, 2002 (67CFR45). The comment period closed May 7. The 
Department received roughly 300 comments, half or more of which were 
verbatim in full or in part with a sample proposed response that 
circulated through the foreign student community. Most of the first 
half of the letters (see ``other factors noted, below) quoted the 
sample proposed response in full; many used only one or two paragraphs 
from it. The Department therefore is responding to the comments 
collectively, by subject matter.

Ineffectiveness and Unfairness; Inconvenience

    The sample proposed response and many of the letters drawing upon 
it claimed the following:
    1. The amended requirement would not deter the entry of terrorists 
because, in the new circumstances, any terrorists already in the United 
States would simply stay here, rather than going to a neighboring 
country for a new visa. Moreover, they would supply false information 
if they did go abroad and applied for a visa.
    2. This unfairly penalizes the innocent while doing nothing against 
evil-doers.
    3. It is ``not in compliance with U.S. fundamental interests--
handicapping the mutual beneficial culture, economic and personnel 
exchanges between the U.S. and other countries.''

Other Factors Noted

    The majority of the other half of letters included one or more of 
the above viewpoints in addition to the following:
    Most of their homes (in their homelands) are very far from a U.S. 
consulate and it takes much longer to obtain a visa there than in 
Canada or Mexico. (All, or almost all, of the commenters were from 
China, India or the Philippines.) Thus, if they cannot apply for a visa 
in Canada or Mexico without risking their re-admission in case of 
delays, they will simply have to forego any trips home to see their 
families. Some closed with the suggestion that, moreover, if they 
weren't limited to single-entry, six-month visas, they wouldn't need 
the automatic revalidation so why do we not simply give them more 
favorable visas to begin with.
    They resent the implication that they, as lawful temporary (but 
long-term) residents (nonimmigrant students and workers) are a threat 
to the United States.
    They have to travel abroad for ``x'' reasons (international 
meeting, study, research, business) and will not have time to get a 
visa while at the meeting or whatever. This means that if they have not 
obtained a reentry visa in Mexico or Canada before keeping that 
commitment, they will have to forego the activity for which they wish 
to travel abroad (finishing their studies/research abroad, presenting 
their paper, etc.), or simply go home thereafter, rather than finishing 
their employment/degree here. The latter course will also risk the loss 
of their apartments, cars, etc., that they will have left here while on 
that foreign trip. Left implicit was the idea that if the prior rule 
applied, they would obtain another visa in Canada/Mexico before 
travelling to wherever else and not have to face such a harrowing 
choice.

Department's Response

    Although sympathetic to the concerns of the commenters, the 
Department must note that the privilege of automatic revalidation, 
instituted some years ago as a convenience both to the travelers and to 
our consular posts, is just that--a privilege. It is not a right. It is 
intended primarily to recognize that persons lawfully in the United 
States may have occasion to cross into and out of Canada or Mexico for 
brief, casual visits or even in direct transit between one part of the 
United States and another. In cases involving aliens who are within 
their authorized stay in the United States but whose visas have 
expired, it is not always practicable for them to apply for and obtain 
a new visa to reenter the United after such a departure. Thus a 
provision was made to consider their visas automatically revalidated 
for purposes of facilitating such brief trips. Automatic revalidation 
also became a vehicle for aliens whose visas had expired and who wanted 
to travel to more distant countries not within the scope of the 
automatic revalidation regulation (e.g., in Asia or Europe). Under the 
old automatic revalidation regulation, such aliens could leave the 
United States temporarily and apply for a new visa in a country such as 
Mexico or Canada that was covered by the automatic revalidation 
regulation. This was not the original intent of the regulation, 
however.
    These are difficult and different times, and certain conveniences 
must be foregone. We are preserving the availability of automatic 
revalidation for its original fundamental purpose, which is to 
recognize and facilitate short-term cross-border travel. By eliminating 
the possibility of automatic revalidation for persons who apply for a 
visa while outside the United States, we are merely eliminating a use 
of the regulation that was not central to its purpose. At the same 
time, however, we are reflecting the new security environment, in which 
visa processing times are longer and favorable outcomes are 
significantly less certain.
    For those whose complaint was that they wouldn't need that 
automatic revalidation provision if we would issue them more than 6 
month/one entry visas in the first place, we can only note that such 
matters are governed by reciprocity as well as national security 
considerations. The question of longer validity periods or multiple 
versus single entry visas does not even arise if an alien's government 
does not issue longer validity, multiple entry visas to U.S. citizens 
for the same purpose of entry.

Preclearance Suggestion

    A few letters took a different approach. They suggested that all of 
the above problems could be resolved if the need for special screening 
could be met by applying for preclearance (in a timely fashion) before 
going to Canada or Mexico. That is, use some mechanism for such 
intending traveler/visa applicants to get security cleared here in the 
United States in advance of their trip to Canada or Mexico to apply for 
the visa.

Department's Response

    The Department concluded that this proposal is not practicable for 
a number of reasons, such as the absence of any mechanism in the United 
States for processing such requests in advance and the lack of 
resources to establish one. More important is the fact that the time 
frame for responses to clearance requests is too fluid for 
realistically estimating when to begin such a process. Therefore it 
cannot be implemented.

Regulatory Analysis and Notices

    Since the final rule is unchanged from the interim rule, and 
because none of the public comments have called them into question, the 
Department reiterates the regulatory analysis and notices published in 
67 FR 45 on March 7, 2002.

[[Page 49353]]

List of Subjects in 22 CFR Part 41

    Aliens, Passports and visas.


0
Accordingly, the Department of State adopts as final the interim rule 
published on March 7, 2002 (67 FR 10322) that revised 22 CFR 41.112(d).

    Dated: June 26, 2003.
Maura Harty,
Assistant Secretary for Consular Affairs, Department of State.
[FR Doc. 03-21070 Filed 8-15-03; 8:45 am]
BILLING CODE 4710-06-P




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