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[Federal Register: August 20, 2008 (Volume 73, Number 162)]
[Rules and Regulations]               
[Page 49091-49092]
From the Federal Register Online via GPO Access []



22 CFR Part 41

[Public Notice: 6324]

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

AGENCY: Department of State.

ACTION: Final rule.


SUMMARY: This final rule amends the Department of State's regulations 
relating to the application for a nonimmigrant visa, to generally 
require all applicants, with certain exceptions, to provide a set of 
ten scanned fingerprints as part of the application process. The 
scanning of ten fingerprints of nonimmigrant visa applicants has 
already been implemented. For the purposes of verifying and confirming 
identity, conducting background checks, and to ensure that an applicant 
has not received a visa or entered into the United States under a 
different name, the Department of State may use the fingerprints in 
order to ascertain from the appropriate authorities whether they have 
information pertinent to the applicant's eligibility to receive a visa 
and for other purposes consistent with applicable law, regulations, and 
Department policy.

DATES: This rule is effective on August 20, 2008.

[[Page 49092]]

FOR FURTHER INFORMATION CONTACT: Charles Robertson, Legislation and 
Regulations Division, Visa Services, Department of State, Washington, 
DC 20520-0106, (202) 663-1202, e-mail (


Why is the Department promulgating this rule?

    This rule updates the regulations concerning documents and 
fingerprints to be provided in support of nonimmigrant visa 
applications. This amendment is necessary because regulations currently 
in place do not contain information about the general requirement for 
nonimmigrant visa applicants to provide ten fingerprints. In response 
to the requirements established by the Enhanced Border Security and 
Visa Entry Reform Act of 2002, the collection of fingerprints from most 
nonimmigrant visa applicants was announced to the public in December 
2004 as part of the Biometric Visa Program. At that time, available 
technology allowed for efficient capture and comparisons of two 
fingerprints by means of scanning (fingerscans). Later, the process was 
expanded to 10 fingerscans. Notice of the transition to ten 
fingerprints was published in the Federal Register at 72 FR 25351 (4 
May 2007).

What effect does this rule change have on the nonimmigrant visa 

    The Biometric Visa Program was introduced gradually, as technology 
allowed, and is now in place at all posts. Therefore, this rule change 
will have no effect on applicants.

Must all applicants be fingerprinted?

    As described in the Federal Register notice, the majority of 
nonimmigrant visa applicants are required to be finger-scanned as part 
of the application process. There are currently some exceptions to the 
fingerprint requirement, including most applicants under the age of 14 
years or over the age of 79.

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 rulemaking procedures set forth at 5 U.S.C. 553.

Regulatory Flexibility Act/Executive Order 13272: Small Business.

    Because this final rule is exempt from notice and comment 
rulemaking under 5 U.S.C. 553, it is exempt from the regulatory 
flexibility analysis requirements set forth at sections 603 and 604 of 
the Regulatory Flexibility Act (5 U.S.C. 603 and 604). Nonetheless, 
consistent with section 605(b) of the Regulatory Flexibility Act (5 
U.S.C. 605(b)), the Department certifies that this rule will not have a 
significant economic impact on a substantial number of small entities. 
This regulates individual aliens who seek consideration for 
nonimmigrant visas and does not affect any small entities, as defined 
in 5 U.S.C. 601(6).

The Unfunded Mandates Reform Act of 1995

    Section 202 of the Unfunded Mandates Reform Act of 1995 (UFMA), 
Public Law 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 governments.

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, Public Law 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.

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


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

    Authority: 8 U.S.C. 1104; Pub. L. 105-277, 112 Stat. 2681-795 
through 2681-801; 8 U.S.C. 1185 note (section 7290 of Pub. L. 108-
458, as amended by section 546 of Public Law 109-295).

2. In Sec.  41.105 add paragraph (b) to read as follows:

Sec.  41.105  Supporting documents and fingerprinting.

* * * * *
    (b) Fingerprinting. Every applicant for a nonimmigrant visa must 
furnish fingerprints, as required by the consular officer.
* * * * *

    Dated: August 6, 2008.
Janice L. Jacobs,
Assistant Secretary for Consular Affairs, Department of State.
[FR Doc. E8-19316 Filed 8-19-08; 8:45 am]