DOS on Refused NIVs
[Proposed Rules]
[Page 13026-13027]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17mr98-24]
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DEPARTMENT OF STATE
22 CFR Part 41
[Public Notice 2763]
Bureau of Consular Affairs; Documentation of Nonimmigrants Under the Immigration and Nationality Act, as Amended--Filing an Application
AGENCY: Bureau of Consular Affairs, DOS.
ACTION: Proposed rule.
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SUMMARY: Consular offices abroad have been experiencing an ever- increasing volume of nonimmigrant visa (NIV) applications. Some have had to begin declining to accept new applications from persons denied as intending immigrants in the recent past. This proposed rule would put this practice on a regulatory footing by formalizing a non- acceptance-for-six-months policy with respect to a new application from an alien whose prior NIV application has been refused under the provisions of INA 214(b).
DATES: Written comments must be received on or before May 18, 1998.
ADDRESSES: Written comments should be submitted, in duplicate, to the Chief, Legislation and Regulations Division, Visa Services, Department of State, Washington, D.C. 20520-0106.
FOR FURTHER INFORMATION CONTACT: H. Edward Odom, Chief, Legislation and Regulations Division, Visa Services, CA/VO/L/R, Department of State, Washington, D.C. 20520-0106, (202) 663-1204.
SUPPLEMENTARY INFORMATION: Section 214(b) of the Immigration and Nationality Act (INA) establishes a presumption that an alien is an intending immigrant unless he or she can establish entitlement to a nonimmigrant classification. Moreover, for certain classes of nonimmigrants, there is also a statutory requirement incorporated in the definitions of those nonimmigrant classifications (INA 101(a)(15)) that the alien establish that he or she has a residence abroad which
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the alien has no intention of abandoning. This is most commonly shown by possession of a well-paying job, a home, family or other ties, etc. which would, in themselves, compel the alien to return voluntarily to that place after a temporary period in the United States. Traditionally, the class of nonimmigrant most likely to fail this test is visitor for business or pleasure (``B'') under INA 101(a)(15)(B). An applicant may request reconsideration by the refusing consular officer and all refusals must, by regulation (41.121(c)), be reviewed within 120 days by a senior officer, who looks at the information as originally before the consular officer. While an applicant may also file an entirely new application, the sooner such a new application is filed after the original application, the less likely it is that conditions relevant to the intending immigrant issue will have so changed as to warrant issuance of a visa on the new application.
Nonetheless, at a number of consular offices, significant resources are spent on ``re-applications'' based on nothing more than the original application, resources that the posts cannot afford no matter how strong their ``service'' orientation. Many posts continue to experience increasing workloads without concomitant increasing staffs. Some posts have therefore instituted local policies, similar to the proposed rule, to limit expenditure of time and space on the many re- applications which are non-meritorious, while reserving discretion to accept re-applications in special circumstances, such as genuine (documentable) emergencies. The Department believes it preferable to have this procedure reflected in uniformly applicable regulations as other procedures generally are.
The rules at 22 CFR 41.103(a) outline the general procedures for filing an application for a nonimmigrant visa, and are thus the logical location for this proposed rule. No regulation could prevent an alien from filling out an application form; it is possible, however, to prevent its ``filing'', i.e., acceptance for adjudication by a consular officer.
This rule is proposed under the authority of INA 104 which invests in the Secretary of State the right to promulgate regulations necessary to administer immigration laws relating to the duties and functions of consular officers.
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 imposes no reporting or record-keeping action on the public requiring the approval of the Office of Management and Budget under the Paperwork Reduction Act. This rule has been reviewed as required under E.O. 12998 and determined to be in compliance therewith.
This rule is exempt from review under E.O. 12866, but has been reviewed internally to ensure consistency therewith.
List of Subjects in 22 CFR Part 41
Aliens, Nonimmigrants, Passports, Visas.
In view of the foregoing, 22 CFR Part 41 is proposed to be amended as follows:
PART 41--[AMENDED]
1. The authority citation for Part 41 continues to read:
Authority: 8 U.S.C. 1104.
2. Section 41.103 is amended by adding paragraph (a)(4), to read as follows:
Sec. 41.103 Filing an application and Form OF-156
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(4) A consular officer may refuse to accept for adjudication an application for a nonimmigrant visa from an applicant whose prior application at that post was denied under the provisions of INA 214(b) within the preceding six months, unless the applicant presents significantly different new evidence or evidence of a genuine emergency.
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Dated: March 10, 1998.Mary A. Ryan,
Assistant Secretary for Consular Affairs.
[FR Doc. 98-6826 Filed 3-16-98; 8:45 am]
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