[Federal Register Volume 86, Number 33 (Monday, February 22, 2021)]

[Rules and Regulations]

[Pages 10453-10456]

From the Federal Register Online via the Government Publishing Office [ www.gpo.gov]

[FR Doc No: 2021-02552]

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DEPARTMENT OF STATE

22 CFR Part 41

[Public Notice: 10642]

RIN 1400-AE21

Visas: Eligibility for Diplomatic and Official Visas

AGENCY: Department of State.

ACTION: Final rule.

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SUMMARY: This rule is promulgated for two reasons: To revise the

definition of ``equivalent of a diplomatic passport'' to include non-

national passports issued by a competent authority other than a foreign

government and as designated by the Secretary of State; and to clarify

the categories of nonimmigrants who may be eligible for a ``diplomatic

type'' or ``official type'' visa, irrespective of the nonimmigrant visa

classification. These technical revisions provide greater clarity and

consistency with existing U.S. law and practices regarding the entities

that the United States considers eligible to issue travel documents and

the individuals who may qualify for ``diplomatic type'' or ``official

type'' visas, irrespective of the nonimmigrant visa classification.

DATES: This rule is effective February 22, 2021.

FOR FURTHER INFORMATION CONTACT: Megan Herndon, Senior Regulatory

Coordinator, Office of Visa Services, Bureau of Consular Affairs, 600

19th Street NW, Washington, DC 20522, 202-485-8910, VisaRegs@state.gov.

SUPPLEMENTARY INFORMATION:

Equivalent of a Diplomatic Passport

This rule revises the definition of ``equivalent of a diplomatic

passport'' at 22 CFR 41.26(a)(3) to include a travel document issued by

a competent authority that does not issue diplomatic passports, and is

designated by the Secretary as the equivalent of a diplomatic passport.

Section 101(a)(30) of the Immigration and Nationality Act

(``INA''), 8 U.S.C. 1101(a)(30), defines a passport as ``any travel

document issued by [a] competent authority showing the bearer's origin,

identity, and nationality if any, which is valid for the admission of

the bearer into a foreign country.'' The Department of State

(``Department'') has clarified its interpretation of this definition in

regulations at 22 CFR 41.104(a), specifying that a passport is not

limited to a national passport or to any single document.

The Department also defines what it considers to be the

``equivalent of a diplomatic passport'' in 22 CFR 41.26(a)(3). This

definition was previously limited to a national passport issued by a

competent authority of a foreign government, which generally does not

issue diplomatic passports to its career diplomatic and consular

officers. This definition, however, did not account for other travel

documents that the Department encounters, including those issued by a

competent authority other than a foreign government to indicate the

holder's status as an official or officer of the issuing entity. For

example, an officer of the United Nations (``UN'') might present a UN

Laissez-Passer, which meets the legal definition of a passport under

INA section 101(a)(30), 8 U.S.C. 1101(a)(30), since UN member states

will generally admit individuals bearing the Laissez-Passer. Under this

rule, the Secretary can designate travel documents issued by a

competent authority other than that of a foreign government as the

equivalent of a diplomatic passport, when appropriate.

Categories of Individuals Who May Qualify for a ``Diplomatic Type'' or

``Official Type'' Visa, Irrespective of Visa Classification

The Department is also revising its regulations on ``diplomatic

type'' and ``official type'' visas at 22 CFR 41.26 and 41.27,

respectively, to ensure consistency with U.S. laws and policies

[[Page 10454]]

that have taken effect since the last substantive revisions in 1959.

Visa Classification Versus Visa Type

Visa classification is not the same as visa type. Section

101(a)(15) of the INA, 8 U.S.C. 1101(a)(15), defines classes of

nonimmigrants based upon the purpose of travel. Implementing

regulations at 22 CFR 41.12 assign classification symbols to these

nonimmigrants to correspond to the INA 101(a)(15) subsection

classification. The visa classification symbol is recorded in each

nonimmigrant's visa record and printed on the front of every issued

nonimmigrant visa as ``Visa Class.'' For example, a visa issued to a

nonimmigrant who is classifiable under INA section 101(a)(15)(A)(i), 8

U.S.C. 1101(a)(15)(A)(i), is assigned the visa classification symbol

``A1.''

The Department issues three ``types'' of nonimmigrant visas:

Diplomatic, official, and regular. The visa type is recorded in each

nonimmigrant's visa record and printed on the front of every issued

nonimmigrant visa as ``Visa Type.'' Section 101(a)(11) of the INA, 8

U.S.C. 1101(a)(11), defines ``diplomatic visa'' as a nonimmigrant visa

bearing that title and issued to a nonimmigrant in accordance with such

regulations as the Secretary of State may prescribe. Implementing

regulations at 22 CFR 41.26(c) clarify that a nonimmigrant is eligible

to receive a ``diplomatic visa,'' irrespective of visa classification,

if he or she is otherwise qualified and possesses a diplomatic

passport, or its equivalent, and falls within the categories listed in

22 CFR 41.26(c). The INA does not define ``official visa'' but the term

is referenced at INA section 222(h)(1)(A)(iv), 8 U.S.C.

1202(h)(1)(A)(iv), along with diplomatic visas. Implementing

regulations at 22 CFR 41.27(c) clarify that a nonimmigrant is eligible

to receive an ``official visa,'' irrespective of visa classification,

if he or she is otherwise qualified and falls within the categories

listed in 22 CFR 41.27(c). A ``regular visa'' is defined in 22 CFR

41.101(e) as a nonimmigrant visa of any classification which does not

bear the title ``Diplomatic'' or ``Official'' and clarifies that a

nonimmigrant visa is issued as a regular visa, unless the alien falls

within one of the classes entitled to a diplomatic or official visa.

The appropriate visa type--diplomatic, official, or regular--is

recorded in each nonimmigrant's visa record and designated on the front

of every issued nonimmigrant visa as ``Visa Type'' with a ``D,'' ``O,''

or ``R'' symbol, respectively.

As described above, the terms ``diplomatic visa'' and ``official

visa'' are used in the INA and in Department regulations to refer to

visa type, not visa classification. See INA 101(a)(11), 8 U.S.C.

1101(a)(11); see also 22 CFR 41.26-27. Thus, for instance, a

nonimmigrant classifiable under INA 101(a)(15)(B) who has a diplomatic

passport and falls within one of the categories specified in 22 CFR

41.26(c)(1) may be issued a diplomatic type B1/B2 visa if found

eligible for the B1/B2 visa classification. However, the public often

uses and understands the terms ``diplomatic visa'' and ``official

visa'' to refer to visa classification, in particular the A1, A2, C3,

G1, G2, G3, G4, NATO1, NATO2, NATO3, NATO4, NATO5, and NATO6 visa

classifications. To avoid confusion, this rule uses the terms

``diplomatic type,'' ``official type,'' and ``regular type'' to clarify

when a reference is to visa type and not to visa classification.

Changes to Categories of Individuals Who May Qualify for a ``Diplomatic

Type'' or ``Official Type'' Visa, Irrespective of Visa Classification

Specifically, this rule will update terminology in 22 CFR

41.26(c)(1)(xii) from ``officers of a diplomatic mission of a temporary

character'' to ``officers of a foreign government.'' The rule will also

update the terminology in 22 CFR 41.27(c)(1)(ix), 41.27(c)(1)(x), and

41.27(c)(1)(xi) from ``clerical and custodial employees'' to

``administrative, service, and similar emloyees'' and update the

terminology referring to ``diplomatic mission'' to ``foreign-government

delegation.'' These updates reflect more consistent application of

similar terminology used within the Department for government officials

and employees traveling to the United States for official duties.

The rule also replaces 22 CFR 41.27(c)(1)(xiii), which previously

provided that attendants, servants, and personal employees of foreign

government officials and staff of international organizations (i.e.,

nonimmigrants classifiable A3 and G5) were eligible to receive official

type visas. Removing this category ensures that such applicants will be

interviewed when applying for A3 or G5 nonimmigrant visas, a change

consistent with the William Wilberforce Trafficking Victims Protection

Reauthorization Act of 2008, 8 U.S.C. 1375c(b)(1)(B). That law mandates

visa interviews for these applicants, whereas 22 CFR 41.102(b)(2)

otherwise permits waivers of the interview requirement for applicants

for an official type visa. Such attendants, servants, and personal

employees will continue to be classifiable as A3 or G5.

This rule also corrects previous errors in a number of other

provisions in 22 CFR 41.26 and 41.27. Section 41.26(c)(2)(vi)(A) is

updated to correct a typographical error. Sections 41.26(c)(1)(xiv),

41.26(c)(2)(xiii), and 41.27(c)(1)(xiii), the categories for immediate

family, are updated to correct numbering of the subsections and to

ensure consistency in language used to describe these categories.

Section 41.27(c)(1)(i) is updated to correct an error in the referenced

category of individuals to whom this section applies. Sections

41.27(c)(1)(ii) and (iii) are updated to clarify that these categories

only cover aliens classifiable under INA sections 101(a)(15)(A)(i);

101(a)(15)(A)(ii); 101(a)(15)(G)(i); 101(a)(15)(G)(ii);

101(a)(15)(G)(iv); 8 U.S.C. 1101(a)(15)(A)(i); 1101(a)(15)(A)(ii);

1101(a)(15)(G)(i); 1101(a)(15)(G)(ii); 1101(a)(15)(G)(iv), and not to

aliens classifiable under INA section 101(a)(15)(A)(iii) or INA section

101(a)(15)(G)(v); 8 U.S.C. 1101(a)(15)(A)(iii) or 8 U.S.C.

1101(a)(15)(G)(v). Aliens classifiable under INA section

101(a)(15)(G)(iii), 8 U.S.C. 1101(a)(15)(G)(iii), are covered in a new

22 CFR 41.27(c)(1)(iv). Because of the addition of a new 22 CFR

41.27(c)(1)(iv), the numbering for subsections following 22 CFR

41.27(c)(1)(iv) is updated.

Section 41.26(c) is also updated to include the requirement of

presenting a diplomatic passport or its equivalent for all subsections

of 22 CFR 41.26(c), consistent with 22 CFR 41.104(d), which requires

that every applicant for a diplomatic type visa present a diplomatic

passport or the equivalent thereof.

Regulatory Findings

Administrative Procedure Act

This rule is exempt from notice and comment under the foreign

affairs exception of the Administrative Procedure Act (``APA''), 5

U.S.C. 553(a)(1). As the federal agency responsible for carrying out

U.S. foreign policy, the Department has exclusive authority to

determine when an applicant can be issued a diplomatic type or official

type visa. As discussed above, INA section 101(a)(11) defines a

``diplomatic visa'' as ``a nonimmigrant visa bearing that title and

issued to a nonimmigrant in accordance with such regulations as the

Secretary of State may prescribe.'' 8 U.S.C. 1101(a)(11). The

Department exercises its statutory discretion when issuing diplomatic

type visas. Issuance of diplomatic type visas is limited to a narrow

category of individuals holding certain positions

[[Page 10455]]

within a foreign government, such as heads of states, cabinet

ministers, ambassadors and public ministers. Further, the Department

exercises its statutory discretion when issuing official type visas.

For example, aliens who are not eligible to receive a diplomatic type

visa and are classifiable under INA 101(a)(15)(A), 8 U.S.C.

1101(a)(15)(A), are eligible to received official type visas. Aliens

classifiable under INA 101(a)(15)(A), 8 U.S.C. 1101(a)(15)(A), must be

``accepted'' by the Secretary of State. 8 U.S.C. 1101(a)(15)(A)(i) and

(ii). Thus, the Secretary's discretion in promulgating regulations as

they relate to issuing diplomatic type and official type visas

``involve[s]. . .a foreign affairs function of the United States.'' 5

U.S.C. 553(a)(1). In Raoof v. Sullivan, the court found that the

Department properly exercised the foreign affairs exception under the

APA when it ``did not engage in formal rule-making'' for the J-1

nonimmigrant visa two-year foreign residence requirement because the

``the exchange visitor program--with its statutory mandate for

international interaction through nonimmigrants--certainly relates to

foreign affairs and diplomatic duties conferred upon the Secretary of

State and the State Department.'' 315 F.Supp.3d 34, 44 (D.D.C. 2018).

This rule, which codifies Department policy regarding which aliens are

treated as diplomats in the issuance of a visa, directly relates to the

Department's authority to carry out diplomatic duties and inherently

involves the Secretary of State's foreign affairs functions.

This rule clearly and directly impacts foreign affairs functions of

the United States and ``implicat[es] matters of diplomacy directly.''

City of N.Y. v. Permanent Mission of India to the U.N., 618 F.3d 172,

201 (2d Cir. 2010). The foreign-affairs exception covers this final

rule, as it is ``linked intimately with the Government's overall

political agenda concerning relations with another country.'' Am. ***'n

of Exporters & Importers-Textile & Apparel Grp. v. United States, 751

F.2d 1239, 1249 (Fed. Cir. 1985). Opening this process to public

comment would most directly affect a particular group of individuals,

foreign government officials and officers of international

organizations, who were eligible for diplomatic type or official type

visas under the prior rule and who may still qualify for diplomatic

type or official type visas, regardless of their purpose of travel or

visa classification. Eligibility for such visa types, which is the

subject of this rule, may determine whether the applicant is required

to go to a U.S. Embassy or Consulate for a visa interview, and

potentially be eligible for certain courtesies at the port of entry to

the United States. The rule discusses standards to be applied by

consular officers, which will determine the type of visa (but not the

visa classification) the visa applicant will receive. Because the

above-referenced stakes are very significant to individuals who already

receive any courtesies attached to the visa type, public comment on

eligibility to receive a diplomatic type or official type visa would

provoke immediate and strident response from the diplomatic community,

in particular certain high ranking foreign government officials that

may be important to the United States' ability to achieve bilateral

objectives. Accordingly, this situation is comparable to the situation

in Am. ***'n of Exps. & Imps.-Textile & Apparel Grp. v. United States,

751 F.2d 1239, 1249 (Fed. Cir. 1985) (ruling that stricter import

restrictions would provoke immediate response from foreign

manufacturers). Therefore, this regulation is exempt from 5 U.S.C. 553

because it involves a foreign affairs function of the United States.

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 by the Regulatory

Flexibility Act (5 U.S.C. 603 and 604). Nonetheless, consistent with

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. Therefore, a regulatory

flexibility analysis under the Regulatory Flexibility Act, as amended,

is not required.

Unfunded Mandates Reform Act of 1995

Section 202 of the Unfunded Mandates Reform Act of 1995, 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.

Congressional Review Act

This rule is not a major rule as defined in 5 U.S.C. 804. The

Department is aware of no monetary effect on the economy that would

directly result from this rulemaking, nor will there be any 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 Orders 12866 and 13563

Executive Orders 13563 and 12866 direct agencies to assess costs

and benefits of available regulatory alternatives and, if regulation is

necessary, to select regulatory approaches that maximize net benefits

(including potential economic, environmental, public health and safety

effects, distributed impacts, and equity). This rule will not affect

the economy by $100 million or more annually. These Executive Orders

stress the importance of quantifying both costs and benefits, of

reducing costs, of harmonizing rules, and of promoting flexibility. The

Department has examined this rule in light of Executive Order 13563,

and has determined that the rulemaking is consistent with the guidance

therein. The Department has reviewed this rulemaking to ensure its

consistency with the regulatory philosophy and principles set forth in

Executive Order 12866. The Office of Information and Regulatory Affairs

has determined that this rulemaking is a significant rulemaking under

Executive Order 12866 and, consequently, reviewed this rulemaking.

The Department notes that this regulatory change only impacts the

visa type (regular, diplomatic or official); it does not affect visa

classification which is based on purpose of travel. Domestic workers of

foreign government officials and international organization officers

(aliens classifiable A-3 or G-5) are the only category of individuals

being removed from the categories of individuals eligible for official

type visas under this regulation. Such individuals do not typically

have a diplomatic or official passport; they travel on regular

passports. Although qualification for an official type visa may provide

some courtesies such as exemption from visa fees, such courtesies are

already attached to the A3 and G5 domestic worker visa classifications,

so they are not losing a benefit. Moreover, even though official type

visa applicants applying with an official passport may have their

interview waived, the Trafficking Victims Protections Reauthorization

Act of 2003 (TVPRA), Public Law 108-193, requires an interview for all

A3 and G5 nonimmigrants so such courtesy may not be extended to an A3

or G5 nonimmigrant.

[[Page 10456]]

Executive Orders 12372 and 13132: Federalism

This regulation will not have substantial direct effect 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. The rule will not have federalism

implications warranting the application of Executive Orders 12372 and

13132.

Executive Order 12988: Civil Justice Reform

The Department has reviewed the rule in light of sections 3(a) and

3(b)(2) of Executive Order 12988 to eliminate ambiguity, minimize

litigation, establish clear legal standards, and reduce burden.

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.

Executive Order 13771

This rule is not subject to the requirements of Executive Order

13771, because its likely impact is de minimis.

Paperwork Reduction Act

This rule does not impose any new reporting or record-keeping

requirements subject to 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.

Accordingly, for the reasons set forth in the preamble, 22 CFR part

41 is amended as follows:

PART 41 VISAS--DOCUMENTATION OF NONIMMIGRANTS UNDER THE IMMIGRATION

AND NATIONALITY ACT, AS AMENDED

0

1. The authority citation for part 41 continues to read as follows:

Authority: 22 U.S.C. 2651a; 8 U.S.C. 1104; 8 U.S.C. 1323; 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. Amend Sec. 41.26 by:

0

a. Revising paragraphs (a)(3), (c) introductory text, (c)(1)

introductory text, and (c)(1)(xii) and (xiv);

0

b. Removing the period at the end of paragraph (c)(1)(xvi) and adding

``; or'' in its place; and

0

c. Revising paragraphs (c)(2) introductory text, (c)(2)(vi)(A), and

(c)(2)(xiii).

The revisions read as follows:

Sec. 41.26 Diplomatic visas.

(a) * * *

(3) Equivalent of a diplomatic passport means a passport that:

(i) Is issued by a competent authority that does not issue

diplomatic passports and

(ii) Has been designated by the Secretary as the equivalent of a

diplomatic passport.

* * * * *

(c) Classes of aliens eligible to receive diplomatic visas. A

nonimmigrant alien who presents a diplomatic passport or its equivalent

shall, if otherwise qualified, be eligible to receive a diplomatic visa

if:

(1) The nonimmigrant alien is within one of the following

categories, irrespective of the classification of the visa under Sec.

41.12:

* * * * *

(xii) Officers of a foreign government proceeding to the United

States on a temporary basis or through the United States in the

performance of their official duties;

* * * * *

(xiv) Members of the immediate family of a principal alien who is

within one of the classes described in paragraphs (c)(1)(i) through

(xi) of this section;

* * * * *

(2) The alien is classifiable as a G-4 and is accompanying any of

these officers:

(vi) * * *

(A) United Nations Children's Fund;

* * * * *

(xiii) Members of the immediate family accompanying or following to

join any principal nonimmigrant alien listed in paragraphs (c)(2)(i)

through (xii) of this section.

* * * * *

0

3. Amend Sec. 41.27 by revising paragraphs (c)(1)(i) through (xiii) to

read as follows:

Sec. 41.27 Official visas.

* * * * *

(c) * * *

(1) * * *

(i) Aliens within a category described in Sec. 41.26(c)(1) who are

ineligible to receive a diplomatic visa because they are not in

possession of a diplomatic passport or its equivalent;

(ii) Aliens classifiable under INA section 101(a)(15)(A)(i) or

(ii), 8 U.S.C. 1101(a)(15)(A)(i) or (ii);

(iii) Aliens who are classifiable under INA section

101(a)(15)(G)(i), (ii), or (iv), 8 U.S.C. 1101(a)(15)(G)(i), (ii), or

(iv);

(iv) Aliens who are classifiable under INA section

101(a)(15)(G)(iii), 8 U.S.C. 1101(a)(15)(G)(iii), as representatives of

a foreign government traveling to an international organization so

designated by Executive Order, where such foreign government is not a

member of the international organization;

(v) Aliens classifiable under INA section 101(a)(15)(C), 8 U.S.C.

1101(a)(15)(C), as nonimmigrants described in INA section 212(d)(8), 8

U.S.C. 1182(d)(8);

(vi) Members and members-elect of national legislative bodies;

(vii) Justices of the lesser national and the highest state courts

of a foreign country;

(viii) Officers and employees of national legislative bodies

proceeding to or through the United States in the performance of their

official duties;

(ix) Administrative, service, and similar employees attached to

foreign-government delegations to, and employees of, international

bodies of an official nature, other than international organizations so

designated by Executive Order, proceeding to or through the United

States in the performance of their official duties;

(x) Administrative, service, and similar employees of a foreign

government proceeding to the United States on temporary duty or through

the United States on a temporary basis in the performance of their

official duties;

(xi) Administrative, service, and similar employees attached to

foreign-government delegations proceeding to or from a specific

international conference of an official nature;

(xii) Officers and employees of foreign governments recognized de

jure by the United States who are stationed in foreign contiguous

territories or adjacent islands;

(xiii) Members of the immediate family when accompanying or

following to join a principal alien who is within one of the classes

referred to or described in paragraphs (c)(1)(i) through (xii) of this

section;

* * * * *

Zachary Parker,

Director, Office of Directives Management, Department of State.

[FR Doc. 2021-02552 Filed 2-19-21; 8:45 am]

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