[Federal Register Volume 87, Number 168 (Wednesday, August 31, 2022)]

[Rules and Regulations]

[Pages 53373-53375]

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

[FR Doc No: 2022-18810]

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DEPARTMENT OF STATE

22 CFR Part 41

[Public Notice: 11809]

RIN 1400-AE71

Visas: Eligibility for Diplomatic Visa Issuance In the United States

AGENCY: Department of State.

ACTION: Final rule.

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SUMMARY: This rule is promulgated to add categories of nonimmigrants

who may be issued nonimmigrant visas in the United States. This

amendment will add a limited category of nonimmigrants who are born in

the United States, but not subject to the jurisdiction thereof, to

noncitizens maintaining A-1, A-2, C-2, C-3, G-1, G-3, G-4, or NATO

nonimmigrant status and properly classifiable as such. The goal of

these revisions is to codify the longstanding policy allowing such

children to be issued diplomatic visas domestically to document their

entitlement to A, C, G, or NATO nonimmigrant status.

DATES: This rule is effective August 31, 2022.

FOR FURTHER INFORMATION CONTACT: Andrea Lage, Acting Senior Regulatory

Coordinator, Visa Services, Bureau of Consular Affairs, 600 19th Street

NW, Washington, DC 20522, 202-485-7586, VisaRegs@state.gov.

SUPPLEMENTARY INFORMATION:

What changes to 22 CFR 41.111 does the Department propose?

This rule amends the regulation identifying categories of

nonimmigrants who may be issued nonimmigrant visas in the United

States, by adding a limited category of nonimmigrants who are born in

the United States, but not subject to the jurisdiction thereof, as they

were born to certain nonimmigrants maintaining A-1, A-2, C-2, C-3, G-1,

G-3, G-4, or NATO status and properly classifiable as such.

Prior to this amendment, the regulation identifying categories of

noncitizens authorized to obtain diplomatic nonimmigrant visas in the

United States limited issuance to noncitizens ``currently maintaining

status'' and ``properly classifiable'' in the A, C-2, C-3, G, or NATO

nonimmigrant visa categories, and required that the noncitizens have

evidence that they have ``been lawfully admitted in that status or

have, after admission, had their classification changed to that

status'' and their ``period of authorized stay in the United Sates in

that status has not yet expired.'' 22 CFR 41.111(b)(1). The Department

of State determines whether a noncitizen is maintaining A or G status,

the most common visa categories impacted for purposes of the present

rule. (See e.g., 8 CFR 214.2(a)(1) and (g)(1), which provide that A and

G nonimmigrants are admitted to the United States by the Department of

Homeland Security for the ``duration of the period for which the alien

continues to be recognized by the Secretary of State as being entitled

to that status.'') Noncitizens previously admitted to the United States

who are seeking domestic visa issuance satisfy the requirement, set out

in the amended regulation, that they have been ``admitted [to the

United States] in [A, C, G, or NATO] status'' or have ``had their

classification changed to [A, C, G, or NATO] status'' by providing

documentation from the Department of Homeland Security, such as an I-

94.

Children born in the United States to parents maintaining certain A

or G nonimmigrant status and benefiting

[[Page 53374]]

from diplomatic agent level immunities are not considered born subject

to the jurisdiction of the United States and therefore do not acquire

U.S. citizenship at birth under the Fourteenth Amendment. While not

common, certain children born to parents in C-2, C-3 and NATO status

also may not acquire U.S. citizenship at birth. This limited group of

children would therefore be present in the United States without any

documentation of their A, C-2, C-3, G or NATO nonimmigrant status. The

Department's policy is that such children should be issued

documentation of their A, C-2, C-3, G or NATO nonimmigrant status, as

provided for by law for derivatives of the principal nonimmigrant. This

amendment will codify existing policy permitting diplomatic visa

issuance in the United States to this limited group of children, whose

parents and other family members already are covered by the regulation

describing issuance of diplomatic visas in the United States. This

procedure is consistent with Department of State accreditation policy,

which requires that derivative family members of those in A and G

status possess a valid A or G visa.

In this rulemaking, the other categories of noncitizens eligible

for visa issuance in the United States remain unchanged.

Regulatory Findings

  1. Administrative Procedure Act

This rule is exempt from notice and comment as it involves a

foreign affairs function of the United States. 5 U.S.C. 553(a).

An action will fall within the exception if it ``clearly and

directly'' involves a foreign affairs function. Capital Area

Immigrants' Rights Coal. v. Trump, 471 F. Supp. 3d 25, 53 (D.D.C. 2020)

(``to be covered by the foreign affairs function exception, a rule must

clearly and directly involve activities or actions characteristic to

the conduct of international relations''). Cases that directly involve

the conduct of foreign affairs include rules that regulate foreign

diplomats in the United States. E.B. et al. v. Dep't of State, Civil

Action 19-2856 at 11 (D.D.C. Feb. 4, 2022); CAIR v. Trump, 471 F. Supp.

3d 25, 54 (D.D.C. 2020). For example, in City of N.Y. v. Permanent

Mission of India to the U.N., the Second Circuit found that a State

Department Federal Register Notice regarding exemptions from real

property taxes imposed by state and local governments validly invoked

the foreign affairs exemption because the regulation of

``quintessential foreign affairs functions such as diplomatic relations

and the regulation of foreign missions [. . .] clearly and directly

involves a `foreign affairs function' '' City of N.Y. v. Permanent

Mission of India to the U.N., 618 F.3d 172, 202 (2d Cir. 2010).

This rule governs the issuance of visas to foreign diplomats and

their family members in the United States and thus similarly implicates

matters of diplomacy directly. It also is about a matter that is likely

to have significant reciprocal consequences for the treatment of U.S.

diplomatic personnel overseas. In the absence of a rule governing the

domestic issuance of visas to the children of foreign mission officials

born within the United States, the mission members may be required to

travel overseas and apply for a visa for their child before reentering

the United States to continue their assignment. These children may also

face difficulties in traveling within the United States if they do not

possess a valid visa. This rule regulates the treatment of foreign

missions to allow for regular diplomatic relations between countries,

and directly invokes a foreign affairs function. Requiring foreign

mission personnel and their children to travel overseas and apply for a

new diplomatic visa similarly invites reciprocal requirements on U.S.

diplomatic personnel, significantly affecting the ability of U.S.

diplomatic personnel to engage with foreign partners and conduct the

work of foreign relations if they must depart the host country to

obtain a new visa for the child. The State Department is best

positioned to make determinations about such matters of international

reciprocity--a point acknowledged by several district courts to justify

the foreign affairs exception for rules such as this. See CAIR, 471 F.

Supp. 3d at 54 (exempting such rules from notice and comment rulemaking

``makes sense'' because ``in the diplomatic context, agency action may

be grounded in international reciprocity'').

  1. 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, the Department

certifies that this rule will not have a significant economic impact on

a substantial number of small entities.

  1. Unfunded Mandates Reform Act of 1995

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 does

not require the Department to prepare a statement because it will not

result in any such expenditure, nor will it significantly or uniquely

affect small governments. This rule involves visas, which involve

individuals, and does not affect, state, local, or Tribal governments,

or businesses.

  1. Congressional Review Act of 1996

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

  1. Executive Orders 12866 (Regulatory Planning and Review) and 13563

(Improving Regulation and Regulatory Review)

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). 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. This rule will ensure consistency with U.S. and

international law, and the benefits of the clarity will benefit the

foreign relations of the United States. There are no anticipated costs

to the public associated with this rule. This rule has been forwarded

to the Office of Information and Regulatory Affairs and has been

designated not significant under Executive Order 12866.

[[Page 53375]]

  1. Executive Orders 12372 and 13132

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. Nor will the rule have federalism

implications warranting the application of Executive Orders 12372 and

13132.

  1. Executive Order 12988

The Department has reviewed the rule considering sections 3(a) and

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

litigation, establish clear legal standards, and reduce burden.

  1. 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.

  1. 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 to read 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; 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

  1. Section 41.111 is amended by revising paragraph (b) to read as

follows:

Sec. 41.111 Authority to issue visa.

* * * * *

(b) Issuance in the United States in certain cases. The Deputy

Assistant Secretary for Visa Services and such officers of the

Department as the former may designate are authorized, in their

discretion, to issue nonimmigrant visas, including diplomatic visas, in

the United States, to:

(1) Qualified applicants who are currently maintaining status and

are properly classifiable in the A, C-2, C-3, G or NATO category and

intend to reenter the United States in that status after a temporary

absence abroad and who also present evidence that:

(i) They have been lawfully admitted in that status or have, after

admission, had their classification changed to that status; and

(ii) Their period of authorized stay in the United States in that

status has not expired; and

(2) Children who are born in the United States, but who are not

subject to the jurisdiction thereof because they are born to certain

qualified individuals who are currently maintaining status and are

properly classifiable in the A, C-2, C-3, G or NATO category.

(3) Other qualified applicants who:

(i) Are currently maintaining status in the E, H, I, L, O, or P

nonimmigrant category;

(ii) Intend to reenter the United States in that status after a

temporary absence abroad; and

(iii) Who also present evidence that:

(A) They were previously issued visas at a consular office abroad

and admitted to the United States in the status which they are

currently maintaining; and

(B) Their period of authorized admission in that status has not

expired.

Rena Bitter,

Assistant Secretary for Consular Affairs, Department of State.

[FR Doc. 2022-18810 Filed 8-30-22; 8:45 am]

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