INS Proposed Rule on Entry Requirements for Citizens of Compact Countries

[Federal Register: July 18, 2001 (Volume 66, Number 138)]
[Proposed Rules]
[Page 37429-37432]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18jy01-17]


DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 211 and 212

[INS No. 2047-00]
RIN 1115-AF65


Entry Requirements for Citizens of the Republic of the Marshall
Islands, the Federated States of Micronesia, and Palau

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Proposed rule.


SUMMARY: This rule is designed to remedy two problems that have arisen
in connection with section 141(a) of the Compact of Free Association
between the United States of America and the Republic of the Marshall
Islands and with the Federated States of Micronesia (48 U.S.C. 1910
note), and the Compact of Free Association between the United States of
America and Palau (48 U.S.C. 1931, note) (Compacts, Compact countries).
That section confers on citizens of the Compact countries certain
privileges to enter the United States as nonimmigrants, subject,
however, to several exceptions set forth in section 141(a)(3)(c) and
section 143 of the Compacts.
This rule will clarify the entry requirements for citizens of the
Compact countries who have been adopted by citizens or lawful permanent
residents of the United States. The purpose of this aspect of the rule
is to prevent the abuse of the entry privileges of section 141(a) of
the Compacts as a means of circumventing statutory provisions designed
to protect adopted children from abuse or exploitation.
In addition, this rule will correct an omission in the codification
of section 141(a) of the Compacts in 8 CFR 212.1(d). That Codification
inadvertently failed to include the exceptions to entry privileges of
citizens of the Compact countries. By incorporating those exceptions in
8 CFR 212.1(d)(2), the rule will bring the Immigration and
Naturalization Service (Service) regulations into compliance with the
Compacts.

DATES: Written comments must be submitted on or before August 17, 2001.

ADDRESSES: Please submit written comments to the Director, Policy
Directives and Instructions Branch, Immigration and Naturalization
Service, 425 I Street, NW., Room 4034, Washington, DC 20536. To ensure
proper handling, please reference INS No. 2047-00 on your
correspondence. Comments may also be submitted electronically to the
Service at insregs@usdoj.gov. When submitting comments electronically
please include INS No. 2047-00 in the subject box. Comments are
available for public inspection at the above address by calling (202)
514-3048 to arrange for an appointment.

FOR FURTHER INFORMATION CONTACT: Michael Biggs, Assistant Director,
Residence and Status Services, Office of Adjudications, Immigration and
Naturalization Service, 425 I Street, NW., Room 3214, Washington, DC
20536, telephone (202) 514-4754.

SUPPLEMENTARY INFORMATION:

What Are the Entry Privileges of Citizens of the Compact Countries
Under the Compacts, and How Does This Rule Affect Those Privileges?

The Compacts both provide in section 141(a), with certain
exceptions discussed, infra, for the following privileges for most
citizens of the Compact countries who seek to enter into the United
States as nonimmigrants. Such citizens of the Compact countries may
enter into the United States, lawfully engage in occupations, accept
employment, and establish residence as nonimmigrants in the United
States, its territories and possessions, without regard to section
212(a)(5)(A) (labor certification), (7)(A) (immigrant visa) and (B)
(nonimmigrant visa) of the Immigration and Nationality Act (Act).
(Previously sections 212(a)(14), (20) and (26) of the Act). This rule
does not affect the existing Compact entry privileges.
The Service notes that sections 212(a)(7)(A) and (B) of the Act
which are waived by section 141(a) of the Compacts contain not only
visa requirements, but also a passport requirement. The waiver
contained in section 141(a) of the Compacts therefore appears to
include a waiver of the need to present a passport upon entry into the
United States. However, practical

[[Page 37430]]

experience has shown that a passport or similar travel document is the
only reliable means by which immigration officials can determine
whether an alien is a citizen of a Compact country entitled to the
privileges of section 141(a). Therefore, the Service requires that
citizens of the Compact countries who seek to enter the United States
as nonimmigrants under section 141(a) present a passport or similar
travel document. This is necessary not in order to comply with the
admission requirements of section 212 of the Act, but rather in order
to establish entitlement to the privileges of section 141(a) of the
Compacts.

What Is the Purpose of This Rule?

While this rule does not modify the substantive Compact rights of
citizens of the Compact countries to enter the United States, the rule
is designed to clarify the pertinent administrative regulations in two
aspects. First, the rule makes it clear that citizens of the Compact
countries who have been adopted by citizens or lawful permanent
residents of the United States are coming to the United States
presumptively to reside as immigrants. Therefore, they may not enter
the United States as nonimmigrants under section 141(a), but must
comply with the standard procedures for immigration, including
immigrant visas. Procedures governing the immigration visas for adopted
children are to be found in a 8 CFR 204.2 and 8 CFR 204.3.
Second, the rule codifies in 8 CFR 212.1(d)(2) the Compact
limitations on the privileges of citizens of Compact countries to enter
the United States as nonimmigrants. These limitations, found in
sections 141(a)(3), (c) and 143 of the Compacts, were inadvertently
omitted from 8 CFR 212.1(d) when that regulation was first issued.
These exceptions to the privileges of section 141(a) are briefly:
(i) Naturalized citizens of the Compact countries, unless they have
been ``actual residents'' of the Compact country that had naturalized
them and hold a ``certificate of actual residence,'' as those terms are
defined in section 461 of the Compacts (section 141(a)(3));
(ii) Citizens of a Compact country who have taken an affirmative
step to retain or acquire the nationality or citizenship of another
country (section 143(a) of the Compacts);
(iii) Citizens of a Compact country who are also citizens of
another country, unless they renounce that other citizenship under oath
(section 143(b) of the Compacts); and
(iv) Citizens of a Compact country who seek to obtain a residence
status leading to naturalization (section 141(c) of the Compacts).

Why Is the Clarification Regarding Adopted Children Necessary?

The clarification of the entry status of citizens of the Compact
countries adopted by citizens or lawful permanent residents of the
United States is necessary because of a practice that has developed in
Compact countries. Citizens and lawful permanent residents of the
United States have adopted children who are citizens of the Republic of
the Marshall Islands and brought them to the United States as
nonimmigrants under section 141(a) of the Compacts.
This practice constitutes an improper use of the privileges under
section 141(a) of the Compacts. Children who enter the United State
after having been adopted abroad by citizens or lawful permanent
residents of the United Stated do so presumptively in order to
establish permanent residence, i.e. to immigrate, rather than to become
temporary nonimmigrant visitors. Moreover, the practice of entering
adopted children as nonimmigrants also puts those children at risk by
bypassing measures designed to protect them, and jeopardizes their
ability to become United States citizens.
Most adopted children immigrate pursuant to section 101(b)(1)(F) of
the Act. United States citizens who adopt abroad a child as defined in
section 101(b)(1)(F) of the Act must file a petition with the Service
to classify the child as an immediate relative before obtaining an
immigrant visa for the child. Section 101(b)(1)(F) of the Act requires
that the Attorney General be satisfied that proper care will be
furnished to the child if admitted to the United States. The Service
therefore evaluates this petition to determine the ability of the
prospective adoptive parents to provide a proper home environment for
the child and their suitability as parents. These determinations are
based primarily on a home study, which is a requirement of section
204(d) of the Act, and criminal background checks, and are essential to
protect the child.
When adoptive parents bring a child into the United States
purportedly as nonimmigrants under the Compacts they evade, as matter
of law, the statutory mandates of section 101(b)(1)(F) and section
204(d) of the Act that alien children adopted abroad by United States
citizens shall not be admitted to the United States unless the
suitability of the adoptive parents has been determined. By the same
token such adoptive parents deprive the child, as a matter of fact, of
an important protection from abuse or exploitation.
Moreover, the admission of an adoptive child as a non-immigrant
under section 141(a) of the Compacts jeopardizes the child's ability to
become a citizen of the United States. Section 320 of the Act, as
amended by section 101 of the Child Citizenship Act of October 30,
2000, Public Law 106-395, 114 Stat. 1631, effective February 27, 2001,
which provides for the automatic naturalization of certain children
born outside the United States, including adopted children, requires
that the child reside in the United States, ``pursuant to lawful
admission for permanent residence.'' In other words, a child must enter
the United States as an immigrant in order to be eligible for automatic
naturalization under section 320 of the Act.
The Compact countries have indicated that, without the
clarification envisaged in the rule, they may no longer permit the
adoption of their citizens and lawful permanent residents of the United
States. For all these reasons, it is important to make certain that
citizens of the Compact Countries who have been adopted by United
States citizens are admitted to the United States as immigrants.

What Changes Is the Service Making to the Regulations?

1. Section 211.1(a) (immigrant visas) is revised to clarify that it
covers children who are citizens of a Compact country who have been
adopted by citizens or lawful permanent residents of the United States.
Those children therefore must present an immigrant visa in order to
enter the United States. This change is necessary to distinguish these
children from citizens of the Compact countries who, under the
Compacts, may enter into the United States as nonimmigrants.
2. Section 212.1(d) (documentary requirements for nonimmigrants) is
revised to incorporative five exceptions to the current text of
paragraph (d). Paragraph (d) is re-designated as paragraph (d)(1) and
continues to permit citizens of the Compact countries to enter into the
United States, lawfully engage in occupations, accept employment, and
establish residence in the United States and its territories and
possessions as nonimmigrants, exempt from the visa and labor
certification requirements with the addition of the clause, ``except as
otherwise provided in paragraph (d)(2).''
3. A new paragraph (d)(2) spells out five exceptions to the basic
principle embodied in paragraph (d)(1). Those citizens of the Compact
countries who

[[Page 37431]]

come within those exceptions must comply with the standard procedures
of the Act in order to enter into the United States.
These changes are necessary to implement the Compact provisions in
the Code of Federal Regulations and to distinguish between those
citizens of the Compact countries who are coming to the United States
as nonimmigrants under the Compacts and those who must enter the United
States as immigrants or under other provisions of the Act.

Thirty-Day Comment Period

The rule provides for a 30-day comment period rather than the 60-
day comment period that is usually provided under Executive Order
12866. This will allow the Service to proceed with final rulemaking in
a quicker manner so that the agency can expeditiously clarify the
documentary requirements for adopted children from Compact countries.
Without prompt clarification of the documentary requirements for an
adoption of a child from the Compact countries, the Compact countries
may no longer permit to the adoption of children by citizens and lawful
permanent residents of the United States.
In addition, the expedition of the Service's rulemaking will
control the orderly and proper admission of nonimmigrants from Compact
countries into the United States. Currently, Service regulations are
not in compliance with the Compacts, resulting in the potential for
improper admissions into the United States. This occurs because the
limitations of the Compact, found in sections 141(a)(3), (c) and 143 of
the Compacts, were inadvertently omitted from 8 CFR 212.1(d) when that
regulation was first issued.

Regulatory Flexibility Act

The Acting 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 primarily affects
individuals, who are entering the United States as nonimmigrants under
the Compacts, and those who are entering as intending immigrants. This
rule does not affect small entities as that term is defined in 5 U.S.C.
601(6).

Unfunded Mandates Reform Act of 1995

This rule will not result in the expenditure by State, local and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one-year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.

Small Business Regulatory Enforcement Fairness Act of 1996

This rule is not a major rule as defined by section 804 of the
Small Business Regulatory Enforcement Act of 1996. 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 significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.

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 13132

This rule 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 section 6 of
Executive Order 13132, it is determined that this rule does not have
sufficient federalism implications to warrant the preparation of a
Federalism Summary Impact Statement.

Executive Order 12988 Civil Justice Reform

This proposed rule meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of Executive Order 12988.

Paperwork Reduction Act

Under the Paperwork Reduction Act of 1995, Public Law 104-13, all
Departments are required to submit to the Office of Management and
Budget (OMB), for review and approval, any reporting and recordkeeping
requirements inherent in a final rule. This rule does not impose any
new reporting or recordkeeping requirements under the Paperwork
Reduction Act.

List of Subjects

8 CFR Part 211

Immigration, Passports and visas, Reporting and recordkeeping
requirements.

8 CFR Part 212

Administrative practice and procedure, Aliens, Immigration,
Passports and visas, Reporting and recordkeeping requirements.

Accordingly, chapter I of title 8 of the Code of Federal
Regulations is proposed to be amended as follows:

PART 211--DOCUMENTARY REQUIREMENTS: IMMIGRANTS; WAIVERS

1. The authority citation for part 211 continues to read as
follows:

Authority: 8 U.S.C. 1101, 1103, 1181, 1182, 1203, 1225, 1227; 8
CFR part 2.

2. In Sec. 211.1, paragraph (a) introductory text is revised to
read as follows:


Sec. 211.1 Visas.

(a) General. Except as provided in paragraph (b) of this section,
each arriving alien applying for admission (or boarding the vessel or
aircraft on which he or she arrives) into the United States for lawful
permanent residence, or as a lawful permanent resident returning to an
unrelinquished lawful permanent residence in the United States and all
children who are citizens of the Republic of the Marshall Islands, the
Federated States of Micronesia, or Palau who have been adopted by
citizens of the United States or by lawful permanent residents of the
United States, must present one of the following:
* * * * *

PART 212--DOCUMENTARY REQUIREMENTS; NONIMMIGRANTS; WAIVERS;
ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE

3. The authority citation for part 212 is revised to read as
follows:

Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1187, 1225, 1226,
1227, 1228, 1252, sections 141, 143, and 461, of the Compacts with
the Republic of the Marshall Islands, the Federated States of
Micronesia, and Palau, 48 U.S.C. 1901, note, and 1931, note,
respectively; 8 CFR part 2.

4. In Sec. 212.1, paragraph (d) is revised to read as follows:

[[Page 37432]]

Sec. 212.1 Documentary requirements for nonimmigrants.

* * * * *
(d) Citizens of the Republic of the Marshall Islands, the Federated
States of Micronesia, and Palau (Compact countries)--(1) General.
Except as provided in paragraph (d)(2) of this section, citizens of the
Compact countries may enter into the United States, lawfully engage in
occupations, accept employment, and establish residence as
nonimmigrants in the United States and its territories and possessions
without regard to section 212(a)(5)(A) (labor certification), (7)(A)
(immigrant visa), and (B) (nonimmigrant visa) of the Act, provided that
they possess a passport or similar travel document issued by the
Compact country of which they are citizens in order to establish their
entitlement to those privileges. This is pursuant to section 141(a), of
the Compact between the United States of America and the Marshall
Islands and the Federated States of Micronesia, 48 U.S.C. 1901, note,
and of section 141(a), of the Compact between the United States of
America and Palau, 48 U.S.C. 1931, note (Compacts).
(2) Exceptions. The following citizens of the Compact countries are
not eligible for the privileges described in paragraph (d)(1) of this
section and must follow standard procedures for obtaining immigrant or
nonimmigrant visas, as appropriate, for entry into the United States,
its territories and possessions:
(i) Children who are citizens of a Compact country who have been
adopted by a United States citizen or a lawful permanent resident of
the Untied States and are coming to the United States. This exception
is based on sections 101(b)(1)(F) and 204(d) of the Act;
(ii) Naturalized citizens of the Compact countries, unless they
have been actual residents in their country of naturalization for not
less than 5 years after attaining naturalization and hold a certificate
of actual residence from that country. This is pursuant to section
141(a)(3) of the Compacts. The terms ``actual resident'' and
``certificate of actual residence'' are defined in section 461 of the
Compacts;
(iii) (A) Any citizen of the Republic of the Marshall Islands or of
the Federated States of Micronesia who takes or has taken an
affirmative step to preserve or acquire a nationality or a citizenship
other than that of the Republic of the Marshall Islands or of the
Federated States of Micronesia. This is pursuant to section 143(a) of
the Compact with the Republic of the Marshall Islands and the Federated
States of Micronesia;
(B) Any citizen of Palau who takes or has taken an affirmative step
to preserve or acquire a nationality or a citizenship of another
country. This is pursuant to section 143(a) of the Compact with Palau;
(iv) (A) Any citizen of the Republic of the Marshall Islands or of
the Federated States of Micronesia having the privileges set forth in
paragraph (d)(1) of this section who also possesses a nationality or a
citizenship of a country other than that of the Republic of the
Marshall Islands or the Federated States of Micronesia, and who has not
renounced that additional nationality or citizenship under oath within
2 years after the effective date of the Compact (October 21, 1986, for
the Republic of the Marshall Islands and November 3, 1986, for the
Federated States of Micronesia), or within 6 months after becoming 21
years old, whichever is later. This is pursuant to section 143(b) of
the Compact with the Republic of the Marshall Islands and the Federated
States of Micronesia;
(B) Any citizen of Palau having the privileges set forth in
paragraph (d)(1) of this section who also possesses the nationality or
citizenship of another country and who has not renounced that
additional nationality or citizenship under oath within 2 years after
the effective date of the Compact with Palau (October 1, 1994), or
within 6 months after becoming 21 years old, whichever is later. This
is pursuant to section 143(b) of the Compact with Palau; and
(v) Citizens of the Compact countries who seek a residence status
leading to naturalization. This is pursuant to section 141(c) of the
Compacts.
* * * * *

Dated: July 13, 2001.
Kevin D. Rooney,
Acting Commissioner, Immigration and Naturalization Service.
[FR Doc. 01-17957 Filed 7-17-01; 8:45 am]
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