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[Federal Register: October 6, 2009 (Volume 74, Number 192)]
[Rules and Regulations]               
[Page 51236-51237]
From the Federal Register Online via GPO Access []



22 CFR Part 41

[Public Notice: 6779]

Visas: Documentation of Nonimmigrants Under the Immigration and 
Nationality Act, as Amended; Requirements for Aliens in Religious 

AGENCY: State Department.

ACTION: Final rule.


SUMMARY: To comply with the Department of Homeland Security regulation 
requiring sponsoring employers to file petitions for all aliens for 
whom R-1 nonimmigrant status is sought. This rule establishes the 
requirement that consular officers ensure that R-1 visa applicants have 
obtained an approved U.S. Citizenship and Immigration Services Form I-
129 petition from the Department of Homeland Security before issuance 
of a visa.

DATES: This rule is effective October 6, 2009.

FOR FURTHER INFORMATION CONTACT: Lauren A. Prosnik, Legislation and 
Regulations Division, Visa Services, Department of State, 2401 E 
Street, NW., Room L-603D, Washington, DC 20520-0106, (202) 663-2951.


Why is the Department promulgating this rule?

    On November 26, 2008, the Department of Homeland Security (DHS) 
promulgated regulations requiring sponsoring employers to file 
petitions for all aliens for whom R-1 nonimmigrant status is sought. 73 
FR 72276. As a result, the requirements for an R-1 nonimmigrant visa 
now include establishing that the applicant is the beneficiary of an 
approved petition. U.S. Citizenship and Immigration Services (USCIS) 
has implemented the petition requirement for nonimmigrant religious 
workers as a way to determine the bona fides of a petitioning religious 
organization located in the United States and to determine that a 
religious worker will be admitted to the United States to work for a 
specific religious organization at the request of that religious 
organization. This rule amends the Department regulations to ensure 
consistency with the regulations set forth by DHS.

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.

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 R-1 
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

    The Department of State has reviewed this proposed rule to ensure 
its consistency with the regulatory philosophy and principles set forth 
in Executive Order 12866 and has determined that the benefits of this 
final regulation justify its costs. The Department does not consider 
this final 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 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 

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.

[[Page 51237]]

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 as follows:


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

    Authority:  8 U.S.C. 1104; Public Law 105-277, 112 Stat. 2681-
795 through 2681-801; 8 U.S.C.1185 note (section 7209 of Pub. L. 
108-458, as amended by section 546 of Pub. L. 109-295).

2. Revise Sec.  41.58 to read as follows:

Sec.  41.58  Aliens in religious occupations.

    (a) Requirements for ``R'' classification. An alien shall be 
classifiable under the provisions of INA 101(a)(15)(R) if:
    (1) The consular officer is satisfied that the alien qualifies 
under the provisions of that section; and
    (2) With respect to the principal alien, the consular officer has 
received official evidence of the approval by USCIS of a petition to 
accord such classification or the extension by USCIS of the period of 
authorized stay in such classification; or
    (3) The alien is the spouse or child of an alien so classified and 
is accompanying or following to join the principal alien.
    (b) Petition approval. The approval of a petition by USCIS does not 
establish that the alien is eligible to receive a nonimmigrant visa.
    (c) Validity of visa. The period of validity of a visa issued on 
the basis of paragraph (a) to this section must not precede or exceed 
the period indicated in the petition, notification, or confirmation 
required in paragraph (a)(2) of this section.
    (d) Aliens not entitled to classification under INA 101(a)(15)(R). 
The consular officer must suspend action on the alien's application and 
submit a report to the approving USCIS office if the consular officer 
knows or has reason to believe that an alien applying for a visa under 
INA 101(a)(15)(R) is not entitled to the classification as approved.

    Dated: September 24, 2009.
Janice L. Jacobs,
Assistant Secretary for Consular Affairs, Department of State.
[FR Doc. E9-24089 Filed 10-5-09; 8:45 am]