DOS Interim Rule on Transitional Diversity Program

InfoNet Title:  Interim Rule on Trans. Diversity Program
Federal Register February 8, 1995

DEPARTMENT OF STATE

BUREAU OF CONSULAR AFFAIRS

22 CFR PART 43

[Public Notice. 2163]

Visas; Documentation of Immigrant Under Section 132 of Public Law
101-649, as Amended. 

AGENCY: Bureau of Consular Affairs, Department of State

ACTION:  Interim rule, with request for comments

SUMMARY: Pub. L. 103-416, the Act of October 25, 1994, the
Immigration and Nationality Technical Corrections Act of 1994,
further amends section 132 of Public Law 101-649 to authorize the
issuance during Fiscal Year 1995 of those immigrant visas
authorized during the three fiscal years of the Transitional
Diversity Program but not used during that period.  The amendments
became effective upon signature and the available visas are to be
issued during the Fiscal Year now in progress.  Accordingly, the
Department is promulgating an interim rule in order to create a
basis for initiating the necessary processing and inviting
comments.

DATES: This rule is effective February 8, 1995. Interested persons
are invited to [[Page 7444]] submit written comments on or before
March 10, 1995.

ADDRESSES: Written comments, with a reference to this rule to
ensure proper and timely handling, may be submitted in duplicate to
the Director, Office of Legislation, Regulations, and Advisory
Assistance, Visa Office, Department of State, Washington, DC,
20522-0113.

FOR FURTHER INFORMATION CONTACT: Cornelius D. Scully, III,
Director, Office of Legislation, Regulations, and Advisory
Assistance, Bureau of Consular Affairs, (202) 663-1184.

SUPPLEMENTARY INFORMATION:

General

    Section 217 of Pub. L. 103-416 amends section 132 of Pub. L.
101-649 to extend the life of the provision through fiscal year
1995. Section 132 provided for the issuance of specified amounts of
immigrant visas during fiscal years 1992, 1993, and 1994. This
program came to be known as the AA-1 program, from the entry code
used by INS to identify for statistical purposes admissions of
aliens who qualified under the program. Natives of specified
countries were authorized to compete for consideration during each
of the three years by applying during an application period
established for each of the years. The annual limitation was set at
40,000 with not less than 40%--16,000--reserved for natives of
Ireland.
    Section 132 was amended to modify the provision in several
respects for the second and third years. Pertinent here were
amendments which authorized the total of visas unused in the first
or second fiscal year to be added to the total for the second or
third year, as applicable, and which authorized the total reserved
for natives of Ireland to be increased in the second and third
years by the shortfall in usage by natives of Ireland in the
preceding year.
    Section 217 of Pub. L. 103-416 further extends this program but
does so in a very limited way. First, the numerical limitation for 
fiscal year 1995 is established as solely the total of immigrant
visas unused in the program during fiscal year 1994. There is no
new annual limitation of 40,000.
    Second, aliens entitled to compete for the available visas will
be limited to those who are natives of countries qualified under
this program who also have applied for consideration under the new
Diversity Lottery provided for in section 203(c) of the Immigration
and Nationality Act, as amended, and in section 42.33 of Title 22,
United States Code. There will be no new mail-in period to allow
aliens to apply to compete for the visas available under this
extension.
    Finally, aliens entitled to compete for the AA-1 program
numbers available during fiscal year 1995 will not have to present
evidence of a firm commitment for employment in the U.S., but will
be subject to the requirement established by section 203(c)(2) for
applicants under the Diversity Lottery--a showing that they have at
least a high school education or its equivalent or that, within the
preceding five years, they have had at least two years of work
experience in an occupation requiring at least two years of
training or experience.

Numerical Limitation and Its Apportionment

    As pointed out above, the numerical limitation for fiscal year
1995 is limited to the number of immigrant visas which were
available during the previous fiscal years but not used during
those years. The total unused was 1,404. Thus, during fiscal year
1995 1,404 visas will be available to natives of qualifying
countries.
    Now, the apportionment of that total is interesting. Section
132(c) specifies that a minimum of 40 percent of a fiscal year
limitation shall be made available to natives of the foreign state
which received the greatest number of visas under the program
established by section 314 of the Immigration Reform and Control
Act. That same section, as amended, also provides that, if usage of
visas by natives of that foreign state falls short of the total
available in a fiscal year, the amount of shortfall is to be added
to the 40 percent minimum during the next fiscal year.
    The foreign state so described was Ireland. Application of the 
above rules to the available numbers produces the following
results--40 percent of 1404=562 (rounded to the nearest whole
number) Visas reserved for natives of Ireland, FY 94--22,555
Visas actually used by natives of Ireland, FY 94--21,804
Shortfall for FY 94--751 Visas available for natives of Ireland, FY
95--562+751=1,313 Visas available for natives of other qualifying
countries--91.

    Section 217 also provides that any visas available to natives
of countries other than Ireland are to be distributed among the
regions established under the Diversity Lottery in proportion to
the usage by region of visas under the AA-1 program during fiscal
years 1992 and 1993. Regionally, the usage during the two fiscal
years cited was distributed as follows:
Europe--85.93%
Asia--11.51%
South America, Mexico, Central America, and the Caribbean--2.02%
Africa--0.54%

    It will be noted that two of the six regions established for 
Diversity Lottery purposes are not listed above--North America and 
Oceania. No countries in the Oceania region qualified for
participation in the AA-1 program and, thus, usage of visas by
natives of countries in that region was necessarily zero.
    The omission of North America has a different basis. The only
two countries in the region are Canada and the Bahamas. Canada was
a country which qualified for the AA-1 program in fiscal year 1993,
although not in fiscal year 1992. On the other hand, Canada does
not qualify for participation in the DV-1 lottery and, thus, the
Bahamas is the only country in the North America Region which does
qualify. The Bahamas was not, however, a country which qualified to
participate in the AA-1 program. For this reason, natives of the
Bahamas who applied for the DV-1 lottery could not be issued AA-1
visas under this carry-over provision. Accordingly, the Department
did not take into account usage by North America in determining how
to apportion the 91 visas available for natives of AA-1 countries
other than Ireland.
    Apportioning the 91 visas among the four regions in accordance
with the percentages indicated above produces the following
numbers--Europe--78 
Asia--10
South America, Mexico, Central America, and the Caribbean--2
Africa--1

Selection of Immigrants

    Small as the numbers of visas available under this provision
are, the question of how to select recipients has been troublesome.
Section 217 itself prohibits any separate mail-in to compete for
these visas and requires that recipients be selected from among
those who applied to compete for selection in the fiscal year 1995
Diversity Lottery. By the time section 217 was enacted, the mail-in
period for that lottery was complete, the computer-generated random
selection had been made and notifications had been sent to the
winners. The Department's decision as to how to handle selection of
the recipients of these visas has been heavily influenced by that
fact.
    First, as to non-Irish competitors for these visas, the number
of registrants for [[Page 7445]] the Diversity Lottery is so large 
compared to the visas available that it will not be necessary to go
beyond those already registered and notified of their qualification
to compete in the Diversity Lottery. The Department envisions that
the visas available for each region will be made available
according to regional rank order numbers to natives of AA-1
qualifying countries who are determined to be ineligible to receive
a DV-1 visa under section 212(a)(6)(C) or 212(e), or who could not
obtain a DV-1 visa because of the regional or percentage
limitation.
    The situation regarding Irish Diversity Lottery applicants is 
rather different. The number of aliens registered for the Diversity
Lottery who could compete for the 1,313 Irish visas is only 2,416--
2,151 from the Republic of Ireland; 265 from Northern Ireland. [In
the AA-1 program, Northern Ireland was required by law to be
treated as part of Ireland. In the Diversity Program, Northern
Ireland is required by law to be treated as a separate foreign
state.] Given the very high percentage of natives of Ireland who
were registered for visas under the AA-1 program but failed to
pursue their applications, the Department believes that it is
necessary to register additional Irish applicants beyond those
registered for the DV-1 program for the express purpose of
producing a pool of Irish applicants sufficient to ensure 
use of all the AA-1 visa numbers carried over from the previous
fiscal years.
    Accordingly, the Department is registering an additional
quantity of natives of Ireland beyond those registered for
competition for the Diversity visas. These applicants will not
compete for Diversity visas as their rank order numbers will not
justify permitting them to do so. They will, however, compete for
the 1,313 AA-1 visas carried over to the current fiscal year.

Interim Rule

  
  The implementation of this rule, with provision for post-
promulgation public comments, is based upon the ``good cause'' 
exception found at 5 U.S.C. 553 (b)(B) and 553(d)(3). The
amendments authorizing the Department to continue issuing visas
under the Transitional Diversity Program throughout fiscal year
1995 took effect October 25, 1994.
    This rule is not expected to have a significant impact on a 
substantial number of small entities under the criteria of the 
Regulatory Flexibility Act. In addition, this rule would not impose
information collection requirements under the provisions of the 
Paperwork Reduction Act of 1980. This rule has been reviewed as 
required under E.O. 12778 and certified to be in compliance
therewith. This rule is exempt from review under E.O. 12866, but
has been reviewed internally by the Department to ensure
consistency with the objectives thereof.

List of Subjects in 22 CFR Part 43

    Aliens, Immigrants, Numerical limitations, Registration, Visas.
Accordingly, title 22, part 43 of the Code of Federal Regulations, 
is amended as follows:

PART 43--[AMENDED]

    1. The authority citation for part 43 is revised to read:
     Authority: 8 U.S.C. 1104; 8 U.S.C. 1153 note, 108 Stat. 4315.

 
   2. Part 43 is amended by adding a new subpart C to read as
     follows:  Subpart C--Documentation of Immigrants Under Section
     217 of Public Law 103-416 Sec.43.21  General. 10043.22  

     Definitions.

43.23  Eligibility for consideration.
43.24  Order of consideration.
43.25  Numerical limitations.
43.26  Fees.
43.27  Eligibility to receive a visa.


Sec. 43.21  General.

    Except as specifically provided in this subpart, the provisions
of the Immigration and Nationality Act, as amended, and of parts 40
and 42 of this chapter shall apply to application for,
consideration of, and issuance or refusal of, immigrant visas under
section 217 of Pub. L. 103-416.


Sec. 43.22  Definitions.

    The definitions set forth in paragraphs (a), (c) and (d) of 
Sec. 43.12 shall apply to application for, consideration of, and 
issuance or refusal of, immigrant visas under section 217 of Pub.
L. 103-416.


Sec. 43.23  Eligibility for consideration.

 
   (a) Natives of adversely affected foreign states other than 
Ireland. Natives of adversely affected foreign states other than 
Ireland shall be eligible for consideration for issuance of a visa 
under this subpart only if they have been registered for
consideration for issuance of a visa during fiscal year 1995 under
section 203(c) of the Immigration and Nationality Act, as amended.
    (b) Natives of Ireland. Natives of Ireland, as that country is 
defined in Sec. 43.12(d) shall be eligible for consideration for 
issuance of a visa under this 103-416.
    (1) They have been registered for consideration for issuance of
a visa under section 203(c) of the Immigration and Nationality Act,
as amended; or
    (2) They have been separately registered for this purpose from 
among those natives of Ireland who petitioned for consideration
under section 203(c) of the Immigration and Nationality Act, as
amended, but were not selected under the procedures established
under Sec. 42.33.

Sec. 43.24  Order of consideration.

    (a) Natives of Ireland. Consideration for issuance of a visa
under this subpart shall be given to natives of Ireland in order of
diversity rank number whose application for a visa under section
203(c) of the Immigration and Nationality Act, as amended, has been
refused under section 212(a)(6)(C) or 212(e) of such Act, or both,
or whose application could not be processed to a conclusion because
of the applicable regional or foreign state limitation. Such
consideration shall thereafter be given to natives of Ireland
separately registered for this purpose as provided in Sec.
43.23(b)(2) and such consideration shall be given in the rank order
established by such registration.
    (b) Natives of adversely affected countries other than Ireland.
Consideration for issuance of a visa under this subpart shall be
given to natives of adversely affected countries other than Ireland
in order of regional diversity rank number whose application for a
visa under section 203(c) of the Immigration and Nationality Act,
as amended, has been refused under section 212(a)(6)(C) or 212(e)
of such Act, or both, or whose application registered for
consideration for issuance of a visa under such section 203(c)
could not be processed to a conclusion because of the applicable
regional or foreign state limitation.


Sec. 43.25.  Numerical limitations.

 
   (a) Centralized control. Centralized control of the numerical 
limitations established pursuant to section 217 of Pub. L. 103-416
and this subpart is established in the Department.
    (b) Numerical limitation for natives of Ireland. The numerical 
limitation for natives of Ireland shall be determined by
multiplying by 0.40 the number of immigrant visas available under
section 132 of Pub. L. 101-649 during fiscal year 1994 to natives
of adversely affected countries which were not used by such natives
and by adding to the result of that calculation the number of visas
available under such section 132 during fiscal year 1994 to natives
of Ireland which were not used by such natives. [[Page 7446]] 
    (c) Numerical limitation for natives of adversely affected 
countries other than Ireland. 
    (1) Overall. The overall numerical limitation for natives of 
adversely affected countries other than Ireland shall be the
difference between the total number of visas available under
section 132 of Pub. L. 101-649 during fiscal year 1994 but not used
during such fiscal year and the number computed pursuant to
paragraph (b) of this section.
    (2) Regional apportionment. The overall numerical limitation 
determined as provided in paragraph (c)(1) of this section shall be
apportioned among the regions established by section 203(c)(1)(F)
of the Immigration and Nationality Act, as amended, as
follows--Africa: 0.54%; Asia: 11.51%; Europe: 85.93%; North
America--none; Oceania: None; and South America, Mexico, Central
America, and the Caribbean; 2.02%.
    (d) Allocation of immigrant visa numbers. Within the
limitations specified in paragraphs (b) and (c) of this section,
the Department shall allocate immigrant visa numbers for use in
connection with the issuance of immigrant visas and the granting of
adjustment of status.

Sec. 43.26  Fees.

    An applicant who is to be given consideration under this
subpart and who is notified or otherwise informed thereof shall
remit to the Department a fee of $25 in such manner as the
Department shall specify in the notification or other communication
to the applicant. The fee shall be $25 regardless of whether or not
the applicant has a spouse and/or child(ren) who intend to
accompany or follow to join the applicant. The remittance shall be
negotiable in such form as the Department shall specify.

Sec. 43.27  Eligibility to receive a visa.

    The eligibility of an applicant for a visa under section 217 of
Pub. L 103-416 shall be determined as provided in the Immigration
and Nationality Act, as amended, and parts 40 and 42 of subchapter
E-Visas except that--
    (a) Section 212(e) of the Immigration and Nationality Act, as 
amended, shall not apply to such an applicant; and
    (b) The provisions of Sec. 40.105 of this chapter shall apply
to such an applicant.

Dated: February 2, 1995.

Mary A. Ryan,

Assistant Secretary for Consular Affairs.

[FR Doc. 95-3004]