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< Back to current issue of Immigration Daily

[Federal Register: April 27, 2011 (Volume 76, Number 81)]
[Rules and Regulations]               
[Page 23477-23479]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27ap11-4]                         

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

DEPARTMENT OF STATE

22 CFR Parts 41 and 42

RIN 1400-AC87
[Public Notice: 7426]

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

AGENCY: State Department.

ACTION: Final rule.

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

SUMMARY: This rule changes Department regulations to broaden the 
authority of

[[Page 23478]]

a consular officer to revoke a visa at any time subsequent to issuance 
of the visa, in his or her discretion. These changes to the 
Department's revocation regulations expand consular officer visa 
revocation authority to the full extent allowed by statute. 
Additionally, this rule change allows consular officers and designated 
officials within the Department to revoke a visa provisionally while 
considering a final visa revocation.

DATES: This rule is effective April 27, 2011.

FOR FURTHER INFORMATION CONTACT: Lawrence B. Kurland, Jr., Legislation 
and Regulations Division, Visa Services, Department of State, 2401 E 
Street, NW., Room L-603D, Washington, DC 20520-0106, (202) 663-1260, e-
mail (KurlandLB@state.gov).

SUPPLEMENTARY INFORMATION: 

Why is the Department promulgating this rule?

    On occasion, after a visa has been issued, the Department or a 
consular officer may determine that a visa should be revoked when 
information reveals that the applicant was originally or has since 
become ineligible or may be ineligible to possess a U.S. visa. Section 
221(i) of the Immigration and Nationality Act (8 U.S.C. 1201(i)) (INA) 
authorizes the Secretary and consular officers to revoke a visa in 
their discretion.
    Current regulations limit the circumstances in which consular 
officers may revoke visas. In light of security concerns, this 
amendment grants additional authority to consular officers to revoke 
visas, consistent with the statutory provisions of the INA. Although 
this rule eliminates the provisions that permit reconsideration of a 
revocation, it also allows for the provisional revocation of a visa 
when there is a need for further consideration of information that 
might lead to a final revocation. In cases where the person subject to 
a provisional revocation is found to be eligible for the visa, the visa 
will be reinstated with no need for reapplication. However, with the 
exception of provisional revocations, an applicant whose visa has been 
revoked must apply for another visa, at which time his or her 
eligibility for the visa will be adjudicated.

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 rule regulates individual aliens who hold nonimmigrant or 
immigrant visas, including employment-based visas. Because section 
221(i) of the INA already grants the Secretary and consular officers 
authority to revoke visas in their discretion (an authority already 
exercised by the Secretary and designees), and this rule simply lifts a 
regulatory restriction on consular officers to exercise the same 
authority, the Department expects that any effect of this rule on small 
entities will be minimal.

The Unfunded Mandates Reform Act of 1995

    Section 202 of the Unfunded Mandates Reform Act of 1995, 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 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 Order 13563

    The Department of State has considered this rule in light of 
Executive Order 13563, dated January 18, 2011, and affirms that this 
regulation is consistent with the guidance therein.

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 13175--Consultation and Coordination With Indian Tribal 
Governments

    The Department has determined that this rulemaking will not have 
tribal implications, will not impose substantial direct compliance 
costs on Indian tribal governments, and will not pre-empt tribal law. 
Accordingly, the requirements of section 5 of Executive Order 13175 do 
not apply to this rulemaking.

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, Passports and visas, 
students.

    Accordingly, for the reasons set forth in the preamble, 22 CFR 
parts 41 and 42 are amended as follows:

[[Page 23479]]

PART 41--VISAS: DOCUMENTATION OF NONIMMIGRANTS UNDER THE 
IMMIGRATION AND NATIONALITY ACT, AS AMENDED

0
1. The authority citation for section 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 7209 of Pub. L. 108-
458, as amended by section 546 of Pub. L. 109-295).


0
2. Section 41.122 is revised to read as follows:


Sec.  41.122  Revocation of visas.

    (a) Grounds for revocation by consular officers. A consular 
officer, the Secretary, or a Department official to whom the Secretary 
has delegated this authority is authorized to revoke a nonimmigrant 
visa at any time, in his or her discretion.
    (b) Provisional revocation. A consular officer, the Secretary, or 
any Department official to whom the Secretary has delegated this 
authority may provisionally revoke a nonimmigrant visa while 
considering information related to whether a visa holder is eligible 
for the visa. Provisional revocation shall have the same force and 
effect as any other visa revocation under INA 221(i).
    (c) Notice of revocation. Unless otherwise instructed by the 
Department, a consular officer shall, if practicable, notify the alien 
to whom the visa was issued that the visa was revoked or provisionally 
revoked. Regardless of delivery of such notice, once the revocation has 
been entered into the Department's Consular Lookout and Support System 
(CLASS), the visa is no longer to be considered valid for travel to the 
United States. The date of the revocation shall be indicated in CLASS 
and on any notice sent to the alien to whom the visa was issued.
    (d) Procedure for physically canceling visas. A nonimmigrant visa 
that is revoked shall be canceled by writing or stamping the word 
``REVOKED'' plainly across the face of the visa, if the visa is 
available to the consular officer. The failure or inability to 
physically cancel the visa does not affect the validity of the 
revocation.
    (e) Revocation of visa by immigration officer. An immigration 
officer is authorized to revoke a valid visa by physically canceling it 
in accordance with the procedure described in paragraph (d) of this 
section if:
    (1) The alien obtains an immigrant visa or an adjustment of status 
to that of permanent resident;
    (2) The alien is ordered excluded from the United States under INA 
236, as in effect prior to April 1, 1997, or removed from the United 
States pursuant to INA 235;
    (3) The alien is notified pursuant to INA 235 by an immigration 
officer at a port of entry that the alien appears to be inadmissible to 
the United States, and the alien requests and is granted permission to 
withdraw the application for admission;
    (4) A final order of deportation or removal or a final order 
granting voluntary departure with an alternate order of deportation or 
removal is entered against the alien;
    (5) The alien has been permitted by DHS to depart voluntarily from 
the United States;
    (6) DHS has revoked a waiver of inadmissibility granted pursuant to 
INA 212(d)(3)(A) in relation to the visa that was issued to the alien;
    (7) The visa is presented in connection with an application for 
admission to the United States by a person other than the alien to whom 
the visa was issued;
    (8) The visa has been physically removed from the passport in which 
it was issued; or
    (9) The visa has been issued in a combined Mexican or Canadian B-1/
B-2 visa and border crossing identification card, and the immigration 
officer makes the determination specified in Sec.  41.32(c) with 
respect to the alien's Mexican citizenship and/or residence or the 
determination specified in Sec.  41.33(b) with respect to the alien's 
status as a permanent resident of Canada.

PART 42--VISAS: DOCUMENTATION OF IMMIGRANTS UNDER THE IMMIGRATION 
AND NATIONALITY ACT, AS AMENDED

0
3. The authority citation for section 42 continues to read as follows:

    Authority: 8 U.S.C. 1104 and 1182; Pub. L. 105-277; Pub. L. 108-
449; 112 Stat. 2681-795 through 2681-801; The Convention on 
Protection of Children and Co-operation in Respect of Intercountry 
Adoption (done at the Hague, May 29, 1993), S. Treaty Doc. 105-51 
(1998), 1870 U.N.T.S. 167 (Reg. No. 31922 (1993)); The Intercountry 
Adoption Act of 2000, 42 U.S.C. 14901-14954, Pub. L. 106-279.

0
4. Section 42.82 is revised to read as follows:

Sec.  42.82  Revocation of visas.

    (a) Grounds for revocation by consular officers. A consular 
officer, the Secretary, or any Department official to whom the 
Secretary has delegated this authority is authorized to revoke an 
immigrant visa at any time, in his or her discretion.
    (b) Provisional revocation. A consular officer, the Secretary, or 
any Department official to whom the Secretary has delegated this 
authority may provisionally revoke an immigrant visa while considering 
information related to whether a visa holder is eligible for the visa. 
Provisional revocation shall have the same force and effect as any 
other visa revocation under INA 221(i).
    (c) Notice of revocation. Unless otherwise instructed by the 
Department, a consular officer shall, if practicable, notify the alien 
to whom the visa was issued that the visa was revoked or provisionally 
revoked. Regardless of delivery of such notice, once the revocation has 
been entered into the Department's Consular Lookout and Support System 
(CLASS), the visa is no longer to be considered valid for travel to the 
United States. The date of the revocation shall be indicated in CLASS 
and on any notice sent to the alien to whom the visa was issued.
    (d) Procedure for physically canceling visas. An immigrant visa 
that is revoked shall be canceled by writing or stamping the word 
``REVOKED'' plainly across the face of the visa, if the visa is 
available to the consular officer. The failure or inability to 
physically cancel the visa does not affect the validity of the 
revocation.

    Dated: April 18, 2011.
Janice L. Jacobs,
Assistant Secretary for Consular Affairs, Department of State.
[FR Doc. 2011-10077 Filed 4-26-11; 8:45 am]
BILLING CODE 4710-06-P


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