INS on Inspection of Alien Crewmembers
Proposed Rules
Page 43676-43679
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DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Part 252
[INS No. 1695-95]
RIN 1115-AD95
Inspection of Alien Crewmembers; 90-Day Modified Inspection Procedure
AGENCY: Immigration and Naturalization Service, Justice.
ACTION: Proposed rule.
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SUMMARY: This rule proposes to amend the Immigration and Naturalization Service (Service) regulations by codifying the Service's longstanding practice of authorizing, on a discretionary basis, multiple landing privileges for certain maritime crewmembers actively serving on board a limited number of commercial maritime cruise ships and ferries making regular trips to and from the United States. This proposed rule would codify the Service's current procedure of granting, in appropriate cases, certain crewmembers' conditional landing permits. An alien crewmember who is granted a conditional landing permits valid for multiple entries, not to exceed an aggregate of 29 days, for the 90-day period following the crewmember's in-person inspection. This procedure enables the Service to exercise its discretionary authority to forego subsequent in-person inspections of the crewmember during the 90-day period.
DATES: Written comments must be submitted on or before October 14, 1997.
ADDRESSES: Please submit written comments, in triplicate, to the Policy Directives and Instructions Branch, Immigration and Naturalization Service, 425 I Street, NW., Room 5307, Washington, DC 20536. Please include INS number 1695-95 on your correspondence to ensure proper and timely handling. Comments are available for public inspection at the above address by calling 202-514-3048, to arrange for an appointment.
FOR FURTHER INFORMATION CONTACT: Catherine M. Paler-Amaya, Assistant Chief Inspector, Immigration and Naturalization Service, 425 I Street, NW., Room 4064, Washington, DC 20536, telephone number (202) 514-3019.
SUPPLEMENTARY INFORMATION:
Background
For more than four decades, the Service has applied a modified inspection procedure with respect to certain alien crewmembers arriving in the United States on a limited number of commercial maritime ferries and cruise ships. Under this modified inspection procedure, the Service, after conducting a full-crew in-person inspection, may excuse an inspected alien crewmember from subsequent in-person inspections upon rearrival in the United States from a foreign port during the 90- day period following the date of the alien's in-person inspection. Alien crewmembers who have not been inspected during a full-crew in- person inspection must be inspected in person at the time they seek landing privileges, and may also be granted multiple entry conditional landing permits. An alien crewmember who is granted a conditional landing permit under this procedure may not remain in this country for an aggregate of more than 29 days during the 90-day period following his or her in-person inspection.
The Service first employed this 90-day modified inspection procedure in connection with the inspection of alien crewmembers employed on ferries operating in the Great Lakes area. The procedure was subsequently expanded to include the inspection of alien crewmen employed on ferries and maritime cruise vessels docking at U.S. ports in the northeast and southeast and, ultimately, to cruise vessels operating in the Western Hemisphere and those landing at preclearance sites in the Caribbean. This discretionary modified inspection procedure applies solely to maritime ferries and cruise ships making regularly scheduled trips to and from the United States which have an established record of compliance with the immigration laws.
Legal Background
Under section 252(a)(1) of the Immigration and Nationality Act (the Act), the Service is required to examine arriving alien crewmembers to determine their eligibility for admission as nonimmigrants under section 101(a)(15)(D) of the Act. An alien crewmember who the Service determines to be admissible may be granted a conditional landing permit to land temporarily pursuant to regulations prescribed by the Attorney General for ``the period of time (not to exceed 29 days) during which the vessel on which the alien arrived remains in port, provided the immigration officer is satisfied that the crewman intends to depart on the vessel or aircraft on which he arrived'' (See section 252(a)(1) of the Act). In enacting this section of the Act, Congress granted the Service considerable authority to determine the most appropriate procedure for conducting examinations of arriving alien crewmen. (See also current 8 CFR 252.1.) The recent amendments to the INA Section 235 which were enacted as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. 104-208, 110 Stat. 3009 (1996) do not fundamentally alter the Service's authority in this area. Section 235(a)(3) now clearly requires the inspection of all alien crewmen seeking admission or readmission to or transit through the United States. The 90-day modified inspection procedure satisfies this mandate because it expressly contemplates an initial in-person inspection of each crewman following which the crewman may make multiple landings under specified conditions, at the discretion of the Service and for a limited period of time.
Policy Basis for the 90-Day Modified Inspection Procedure
Based on its long experience inspecting maritime vessels, the Service has determined that, in appropriate cases, the 90-day modified inspection procedure is the most appropriate means of enforcing the immigration laws. In developing this longstanding policy, the Service has considered a variety of relevant factors, including its experience with maritime carriers at local Ports-of-Entry, the specific nature of the maritime activities involved, the frequency of a particular vessel's arrivals from a foreign port, the vessel's record of compliance with the immigration laws, the Service's local personnel requirements, and the needs of operators of maritime ferry and cruise ships and their passengers.
In instituting this procedure, the Service has determined that, in instances involving, among other things, the regular hourly, daily, or weekly arrival of alien crewmembers on ferries and/or cruise ships known to have been in compliance with the immigration laws over extended periods of time, the costs, in terms of the Service's resources and, therefore, the Service's ability to enforce the Act, substantially exceed the marginal benefits to be gained in requiring the constant re-examination of such individuals. The Service believes that the modified inspection procedure provides the Service with ample control over the entry of such alien crewmembers while offering the Service the necessary flexibility to shift more effectively its limited personnel resources to other areas it deems more vital in carrying out its statutory responsibilities.
It should be noted that invocation of the 90-day modified inspection is entirely discretionary; the Service is not required to grant a multiple entry conditional landing permit in all cases, or to forego an in-person inspection during the 90-day period even if it has issued such a permit. In all instances, the burden is on the arriving crewmember of establish eligibility for admission under section 101(a)(15)(D) of the Act. Because each situation is unique, the Service cannot give any assurance that it will be able to provide the carrier with advance notice that it will require such an in-person inspection.
Regulatory Amendments
As previously discussed, the 90-day modified inspection procedure is fully consistent with the current statutory and regulatory scheme. Accordingly, the Service is proposing to revise 8 CFR 252.1 (d), (e), and (f) to codify the longstanding Service practice of granting conditional landing permits to certain maritime crewmen, without further examination at the discretion of the Service, during the intervening time between 90-day full-crew inspections. Codifying this procedure in the form of a regulation is also necessary to ensure complete consistency with the specific terms of the Service's regulations. To this end, the Service is proposing to amend 8 CFR 252.1(e) to provide specifically that, in cases involving the 90-day modified inspection procedure, the Service need not enter a notation on the alien crewman's Form I-95AB following each arrival from a foreign port. The proposed regulation would also require inspectors issuing conditional landing permits pursuant to the 90-day modified inspection procedure to add a specific notation to the alien crewman's Form I-95AB, at the time of the in-person inspection, stating that the conditional landing permit is valid for multiple, landings, not to exceed an aggregate of 29 days, during the 90-day period following the in-person inspection.
Limited Scope of the 90-Day Modified Inspection Procedure
Despite the codification of this 90-day modified inspection procedure in the limited circumstances previously described, the Service believes that conducting an individual in-person examination prior to each entry is the preferable manner in which to discharge the responsibilities imposed on the Attorney General in sections 235 and 252 of the Act, in most cases.
Regulatory Flexibility Act
The Commissioner of the Immigration and Naturalization Service, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving it, certifies that this rule will not have a significant economic impact on a substantial number of small entities. This rule merely incorporates a practice of longstanding policy into the Code of Federal Regulations and ensures full consistency between the procedure and the specific language of the existing regulations.
Executive Order 12866
This rule is not considered by the Department of Justice, Immigration and Naturalization Service, to be a ``significant regulatory action'' under Executive Order 12866, section 3(f), Regulatory Planning and Review, and the Office of Management and Budget has waived its review process under section 6(a)(3)(A).
Executive Order 12612
The regulation proposed herein will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 12612, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.
Paperwork Reduction Act
The information collection requirements contained in this rule have been cleared by the Office of Management and Budget under the provisions of the Paperwork Reduction Act. Clearance numbers for these collections are contained in 8 CFR 299.5, Display of control numbers.
List of Subjects in 8 CFR Part 252
Administrative practice and procedure, Aliens, Crewmen, Vessels.
Accordingly, part 252 of chapter I of title 8 of the Code of Federal Regulations is proposed to be amended as follows:
PART 252--LANDING OF ALIEN CREWMEN
1. The authority citation for part 252 is revised to read as follows:
Authority: 8 U.S.C. 1103, 1184, 1258, 1281, 1282; and 8 CFR part 2.
2. In Sec. 252.1, paragraphs (d), (e), and (f) are revised to read as follows:
Sec. 252.1 Examination of crewmen.
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(d) Authorization to land. The immigration officer in his or her discretion may grant an alien crewman authorization to land temporarily in the United States for:
(1)(i) Shore leave purposes during the period of time the vessel or aircraft is in the port of arrival or other ports in the United States to which it proceeds directly without touching at a foreign port or place, not exceeding 29 consecutive days, if the immigration officer is satisfied that the crewman intends to depart on the vessel or aircraft on which he or she arrived or on another vessel or aircraft of the same transportation line, and the crewman's passport is surrendered for safekeeping to the master of the arriving vessel or aircraft, or
(ii) In the case of an alien crewman serving in any capacity on board a ferry or commercial maritime cruise ship making regularly scheduled trips to and from the United States, shore leave purposes during the period of time that the crewman's assigned vessel is in the port of arrival or other ports in the United States to which the vessel proceeds directly, provided that the total amount of time for which the crewman has been granted authorization to land does not exceed 29 days in the aggregate during the 90-day period after the date on which the crewman has been examined in person by an immigration officer, or
(2) The purpose of departing from the United States as a crewman on a vessel other than the one on which he or she arrived, or departing as a passenger by means of other transportation, within a period of 29 days, if the immigration officer is satisfied that the crewman intends to depart in that manner, that definite arrangements for such departure have been made, and the immigration officer has consented to the pay off or discharge of the crewman from the vessel on which the crewman arrived. A crewman granted a conditional permit to land under section 252(a)(1) of the Act and paragraph (d)(1)(i) of this section is required to depart with his or her vessel from its port of arrival and from each other port in the United States to which it thereafter proceeds coastwise without touching at a foreign port or place. However, he or she may rejoin his or her vessel at another port in the United States before it touches at a foreign port or place if he or she has advance written permission from the master or agent to do so. A crewman granted a conditional permit to land under section 252(a)(1) of the Act and paragraph (d)(1)(ii) of this section is required to depart with his or her vessel from its port of arrival and from each other port in the United States to which it thereafter proceeds coastwise without touching at a foreign port or place.
(3) Upon finding an alien crewman entitled to land under paragraph (d)(1) of this section, the examining officer shall grant the alien ``D-1'' nonimmigrant classification. Upon finding an alien crewman entitled to land under paragraph (d)(2) of this section, the examining officer shall grant the alien ``D-2'' nonimmigrant classification.
(e) Conditional permits to land. Unless the crewman is in possession of Form I-184 and is landed under paragraph (d)(1)(i) of this section, the immigration officer shall give each alien nonimmigrant crewman permitted to land a copy of Form I-95AB, Alien Crewmen Landing Permit, presented by the crewman, and endorsed by the immigration officer to show the date and place of examination. The immigration officer shall also indicate on each Form I-95AB the type of conditional landing permit granted. In cases where the crewman is granted authorization to land under paragraph (d)(1)(ii) of this section, the inspector shall endorse the Form I-95AB with the following legend:
Pursuant to 8 CFR 252.1(d)(1)(ii), this conditional landing permit is valid for multiple landings for an aggregate of no more than 29 days during the 90-day period following the date of your in- person examination before an officer of the Immigration and Naturalization Service (Service). You must present yourself for another in-person examination before an officer of the Service upon expiration of this 90-day period. This landing authorization is conditional, and you may be required to present yourself for an in- person examination before an officer of the Service at any time during the 90-day period for which this permit has been issued.
(f) Change of status. An alien nonimmigrant crewman landed pursuant to the provisions of this part shall be ineligible for any extension of stay or for a change of nonimmigrant classification under 8 CFR part 248. A crewman admitted under paragraph (d)(1) of this section may, if still maintaining status, apply for a conditional landing permit under paragraph (d)(2) of this section. The application shall not be approved unless an application on Form I-408, Application to Pay Off or Discharge Alien Crewman, filed pursuant to paragraph (h) of this section, has been approved authorizing the master or agent of the vessel on which the crewman arrived to pay off or discharge the crewman and unless evidence is presented by the master or agent of the vessel to which the crewman will be transferred that a specified position on that vessel has been authorized for him or her or that satisfactory arrangements have been completed for the repatriation of the alien crewman. If the application is approved, the crewman shall be given a new Form I-95AB endorsed to show landing authorized under paragraph (d)(2) of this section for the period necessary to accomplish his or her scheduled reshipment, which shall not exceed 29 days from the date of his or her landing, upon surrendering any conditional landing permit previously issued to him or her on Form I-95AB.
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Dated: July 17, 1997.Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 97-21708 Filed 8-14-97; 8:45 am]
BILLING CODE 4410-10-M