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[Federal Register: December 18, 2006 (Volume 71, Number 242)]
[Rules and Regulations]               
[Page 75662-75663]
From the Federal Register Online via GPO Access []



22 CFR Part 41

[Public Notice: 5646]

Visas: Documentation of Nonimmigrants Under the Immigration and 
Nationality Act, as Amended

AGENCY: State Department.

ACTION: Final rule.


SUMMARY: This final rule amends guidance to consular offices for the 
waiver of personal appearance of applicants for nonimmigrant visas 
contained at 22 CFR 41.102, to conform to the requirements of Section 
222(h) of the Immigration and Nationality Act, as added by section 5301 
of the Intelligence Reform and Terrorism Prevention Act of 2004 
(IRTPA). The final rule replaces the interim rule published in the 
Federal Register on July 7, 2003 and reflects legislation enacted 
subsequent to that rule.

DATES: This rule is effective on December 18, 2006.

FOR FURTHER INFORMATION CONTACT: Charles Robertson, Legislation and 
Regulations Division, Visa Services, Department of State, Washington, 
DC 20520-0106, (202) 663-1221, e-mail (


Why is the Department promulgating this rule?

    Section 5301 of the Intelligence Reform and Terrorism Prevention 
Act of 2004 (IRTPA) added a new Section 222(h) to the Immigration and 
Nationality Act (INA). Section 222(h) sets out detailed statutory 
requirements for personal interviews of non-immigrant visa applicants 
in the INA for the first time. Previously, INA Section 222(e) left the 
question of personal appearance of nonimmigrant visa applicants to be 
defined by regulation. The Department's interim rule published on July 
7, 2003 (68 FR 40168) defined the requirements for personal appearance. 
This final rule replaces the previous interim rule to reflect the 
requirements of IRTPA and the new INA Section 222(h). Most of new 
Section 222(h) can be implemented through the Department's existing 
personal appearance regulations and current requirements for 
fingerprint collection, but a few changes in the regulations are needed 
to conform fully to the new interview requirements. The most 
significant change is that a consular officer must now interview 
persons in the same age ranges as persons covered by the biometric 
collection requirement. In addition to the existing list of situations 
in which an interview may not be waived, the personal interview 
requirement may not be waived for NIV applicants from third countries 
and applicants who have been previously refused visas or found 
ineligible for visas, where that ineligibility was not overcome.

Are there any exceptions to these new requirements?

    Section 5301 of IRTPA provides for some exceptions from the new 
interview requirements. In addition, as the President noted in the 
signing statement for IRTPA, the interview requirement is viewed ``as 
advisory'' with respect to foreign diplomats or foreign officials, 
because it otherwise would impermissibly burden the President's 
constitutional authority to conduct foreign relations. Therefore, the 
regulations continue to permit exemptions from the interview 
requirements of persons in A-1, A-2, C-2, C-3, G-1, G-2, G-3 G-4, NATO-
1, NATO-2, NATO-3, NATO-4, NATO-5, or NATO 6 classifications, and 
applicants for diplomatic or officials visas as described in 22 CFR 
41.26 and 41.27.

Regulatory Findings

Administrative Procedure Act

    This regulation involves a foreign affairs function of the United 
States and, therefore, in accordance with 5 U.S.C. 553 (a)(1), is not 
subject to the rule making procedures set forth at 5 U.S.C. 553.

[[Page 75663]]

Regulatory Flexibility Act/Executive Order 13272: Small Business

    This rule is not subject to the notice-and-comment rulemaking 
provisions of the Administrative Procedure Act or any other act, and, 
accordingly it does not require analysis under the Regulatory 
Flexibility Act (5 U.S.C. 601, et seq.) and Executive Order 13272, 
section 3(b).

The Unfunded Mandates Reform Act of 1995

    Section 202 of the Unfunded Mandates Reform Act of 1995 (UFMA), 
Pub. L. 104-4, 109 Stat. 48, 2 U.S.C. 1532, generally requires agencies 
to prepare a statement before proposing any rule that may result in an 
annual expenditure of $100 million or more by State, local, or tribal 
governments, or by the private sector. This rule will not result in any 
such expenditure, nor will it significantly or uniquely affect small 

The Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by 5 U.S.C. 804, for 
purposes of congressional review of agency rulemaking under the Small 
Business Regulatory Enforcement Fairness Act of 1996, Pub. L. 104-121. 
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 adverse 
effects on competition, employment, investment, productivity, 
innovation, or the ability of United States-based companies to compete 
with foreign based companies in domestic and import markets.

Executive Order 12866: Regulatory Review

    The Department of State has reviewed this rule to ensure its 
consistency with the regulatory philosophy and principles set forth in 
Executive Order 12866 and has determined that the benefits of the 
proposed regulation justify its costs. The Department does not consider 
the rule to be an economically significant action within the scope of 
section 3(f)(1) of the Executive Order since it is not likely to have 
an annual effect on the economy of $100 million or more or to adversely 
affect in a material way the economy, a sector of the economy, 
competition, jobs, the environment, public health or safety, or state, 
local, or tribal governments or communities.

Executive Orders 12372 and 13132: Federalism

    This regulation will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or the distribution of power and responsibilities among the 
various levels of government. Nor will the rule have federalism 
implications warranting the application of Executive Orders No. 12372 
and No. 13132.

Executive Order 12988: Civil Justice Reform

    The Department has reviewed the proposed regulations in light of 
sections 3(a) and 3(b)(2) of Executive Order No. 12988 to eliminate 
ambiguity, minimize litigation, establish clear legal standards, and 
reduce burden.

Paperwork Reduction Act

    This rule does not impose information collection requirements under 
the provisions of the Paperwork Reduction Act, 44 U.S.C., Chapter 35.

List of Subjects in 22 CFR Part 41

    Aliens, Foreign officials, Immigration, Nonimmigrants, Passports 
and visas, Students.

For the reasons stated in the preamble, the Department of State amends 
22 CFR part 41 as follows:


1. The authority citation for part 41 shall continue to read:

    Authority: 8 U.S.C. 1104; Pub. L. 105-277, 112 Stat. 2681-795 
through 2681-801. Additional authority is derived from Section 104 
of the Illegal Immigration Reform and Immigrant Responsibility Act 
of 1996 (IIRIRA) Pub. L. 104-208, 110 Stat. 3546.

2. Amend Sec.  41.102 as follows:
A. Revise paragraph (b),
B. Amend paragraph (c) by adding the phrase ``Except as provided in 
paragraph (d) of this section'' to the beginning of the second 
C. Redesignate paragraph (d) as (e) and add a new paragraph (d).
    The new and revised text reads as follows:

Sec.  41.102  Personal appearance of applicant

* * * * *
    (b) Waivers of personal appearance by consular officers. Except as 
provided in paragraph (d) of this section or as otherwise instructed by 
the Deputy Assistant Secretary of State for Visa Services, a consular 
officer may waive the requirement of personal appearance in the case of 
any alien who the consular officer concludes presents no national 
security concerns requiring an interview and who:
    (1) Is a child under 14 years of age;
    (2) Is a person over 79 years of age;
    (3) Is within a class of nonimmigrants classifiable under the visa 
symbols A-1, A-2, C-2, C-3 (except attendants, servants, or personal 
employees of accredited officials), G-1, G-2, G-3, G-4, NATO-1, NATO-2, 
NATO-3, NATO-4, NATO-5, or NATO-6 and who is seeking a visa in such 
    (4) Is an applicant for a diplomatic or official visa as described 
in Sec. Sec.  41.26 or 41.27 of this chapter, respectively;
    (5) Is an applicant who within 12 months of the expiration of the 
applicant's previously issued visa is seeking re-issuance of a 
nonimmigrant biometric visa in the same classification at the consular 
post of the applicant's usual residence, and for whom the consular 
officer has no indication of visa ineligibility or of noncompliance 
with U.S. immigration laws and regulations; or
    (6) Is an alien for whom a waiver of personal appearance is 
warranted in the national interest or because of unusual circumstances.
* * * * *
    (d) Cases in which personal appearance may not be waived. A 
consular officer or the Deputy Assistant Secretary of State may not 
waive personal appearance for:
    (1) Any NIV applicant who is not a national or resident of the 
country in which he or she is applying, unless the applicant is 
eligible for a waiver of the interview under paragraphs (b)(3) or 
(b)(4) of this section.
    (2) Any NIV applicant who was previously refused a visa, is listed 
in CLASS, or who otherwise requires a Security Advisory Opinion, 
    (i) The visa was refused temporarily and the refusal was 
subsequently overcome;
    (ii) The alien was found inadmissible, but the inadmissibility was 
waived; or
    (iii) The applicant is eligible for a waiver of the interview under 
paragraphs (b)(3) or (b)(4) of this section.
    (3) Any NIV applicant who is from a country designated by the 
Secretary of State as a state sponsor of terrorism, regardless of age, 
or in a group designated by the Secretary of State under section 
222(h)(2)(F) of the Immigration and Nationality Act, unless the 
applicant is eligible for a waiver under paragraphs (b)(3) or (b)(4) of 
this section.
* * * * *

    Dated: November 30, 2006.
Maura Harty,
 Assistant Secretary for Consular Affairs, Department of State.
 [FR Doc. E6-21492 Filed 12-15-06; 8:45 am]