Waiver of Certain Types of Visas [61 FR 11717] [FR 15-96]

DOCUMENT NUMBER: FR 15-96

FEDERAL REGISTER CITE: 61 FR 11717

DATE PUBLISHED: March 22, 1996

BILLING CODE: 4410-10

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 212

[INS No. 1669-94]

RIN 1115-AD77

Waiver of Certain Types of Visas

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Final rule.

SUMMARY: This rule amends the Immigration and Naturalization Service (the Service) regulations to permit district directors, in individual cases, to waive nonimmigrant visa or passport requirements under section 212(d)(4)(A) of the Immigration and Nationality Act (the Act), if satisfied that a nonimmigrant alien is unable to present these documents because of an unforeseen emergency. The rule clarifies that carriers are liable for fines imposed under section 273 of the Act for bringing nonimmigrants to the United States who do not have a valid passport or nonimmigrant visa, or border crossing identification card, even if a waiver of these documents is granted by the district director at the time of admission into the United States. This change was necessary to conform the language of the regulations with the statutory provision that imposes fine liability on a carrier which transports an alien to the United States without the proper documentation.

EFFECTIVE DATE: March 22, 1996.

FOR FURTHER INFORMATION CONTACT: Robert F. Hutnick, Assistant Chief Inspector, Inspections Division, Immigration and Naturalization Service, 425 I Street NW., room 7228, Washington, DC 20536, telephone number (202) 616-7499.

SUPPLEMENTARY INFORMATION: Section 212(d)(4)(A) of the Act allows the Attorney General to waive the requirement that a nonimmigrant alien be in possession of a visa or passport if he or she is unable to present the necessary documents due to an unforeseen emergency. Section 273(b) of the Act imposes a fine upon a carrier for violations of section 273(a) of the Act. Section 273(a) of the Act requires carriers bringing aliens into the United States to ensure that its passengers are in possession of a valid passport and unexpired vis a, if a visa is required under the Act or regulations.

The regulations at 8 CFR 212.1(g) had the unintended effect of relieving the carrier of fine liability if the district director granted a waiver of the passport or nonimmigrant visa requirement. In Air BVI Ltd., Flight BL 410 (BIA Unpublished Decision No. SAJ 10/50.670, August 26, 1992), the Board of Immigration Appeals (the Board) characterized the regulation as creating a "blanket" waiver because of language in the regulation stated that "a visa * * * is not required." The Board based its decision on whether an alien's admission with a waiver relieved the carrier of liability for a fine by interpreting the regulations in effect at the time involved. Matter of Plane "CUT-604" , 7 I&N 701 (BIA 1958). If the regulation creates a blanket waiver, by stating that no visa is required, no fine liability is incurred by the carrier. By contrast, a regulation that provides for a discretionary waiver of the visa and passport requirements to be granted to a nonimmigrant on a case-by-case basis will not relieve the carrier of fine liability.

This rule removes the language, "[a] visa and a passport are not required of a nonimmigrant" so that even when the district director waives the documentary requirements in the exercise of his or her discretion, on a case-by-case basis, and admits such a nonimmigrant to the United States, such admission will not eliminate the carrier's fine liability for bringing that alien to the United States without proper documentation ( Matter of Plane "CUT-604" ). The fine procedures at 8 CFR part 280 remain applicable and require no change.

This rule further amends § 212.1(g) by removing the provision regarding waivers of the visa requirement granted pursuant to section 212(d)(4)(A) of the Act in the case of a national or resident of Cuba. This action is being taken because this provision is obsolete.

On April 14, 1995, at 60 FR 19001-19002, the Immigration and Naturalization Service (the Service) published a proposed rule with request for comments in the Federal Register, in order to correct this loophole in the regulations which allowed carriers to transport improperly documented aliens to the United States without incurring fines under section 273 of the Act. Interested persons were invited to submit written comments on or before June 13, 1995. The following is a discussion of those comments receive d by the Service and the Service's response.

Discussion of Comments on the Proposed Rule

The Service received four comments on the proposed rule. One commenter claimed the proposed change "will have an effect repugnant to the intent of Congress, the existing regulation of the Attorney General and the intended effect of the current regulation." It must be emphasized that the Service policy of strictly enforcing the fine provisions of section 273 of the Act in appropriate cases is a continuation of a more than 70-year-old policy of carrying out Congress' intent to hold carriers responsible for passengers they have transported to the United States. The Board and the courts have consistently held that carriers must exercise reasonable diligence in boarding their passengers for transport to the United States and are subject to administrative fines for failure to do so, e.g., Matter of Eastern Airlines, Inc., Flight #798 , Int. Dec. 3110 (BIA 1989); Matter of M/V Guadalupe , 13 I&N Dec. 67 (BIA 1968); New York & Porto Rico S.S. Co. v. United States , 66 F.2d 523, 525 (2d Cir. 1933).

The imposition of administrative fines in appropriate cases has long been an important tool in enforcing our immigration laws and safeguarding our borders. In enacting both section 273 of the Act of 1952 as well as section 16 of the Immigration Act of 1924, the precursor of section 273, Congress intended to make the carrier ensure compliance with the requirements of the respective statutory provisions. See Joint Hearings on the Revision of Immigration, Naturalization, and Nationality Laws, Senate and House Subcommittees on the Judiciary, Testimony of Stuart G. Tipton, General Counsel, Air Transport Association of America at p. 294 (March 14, 1951); Matter of M/V "Runaway" , 18 I&N Dec. at 128 (citing section 273 cases). Indeed, in enacting section 273 of the Act, Congress strengthened the previous penalty provisions, which only applied to carriers unlawfully transporting immigrants to this country, to apply to the unlawful transport of nonimmigrants as well. See Matter of S.S. Greystoke Castle and M/V Western Queen , 6 I&N Dec. 112, 114-15 (BIA, AG 1954); Legal Opinion of the INS General Counsel, 56336/273a at 6 (Sept. 3, 1953).

The commenter further claims that "Congress clearly contemplated situations whereby nonimmigrant aliens would need to travel to the United States without the formality of obtaining a passport or visa by enacting INA 212(d)(4)(A)." Congress indeed contemplated a situation where this would arise. Nevertheless, the commenter failed to mention that a passport or visa may be waived only by "the Attorney General and the Secretary of State acting jointly." Congress at no time envisioned that carrier representat ives would be responsible for determining admissibility of aliens to the United States at the port of embarkation for any reason without prior authority from the Attorney General or Secretary of State.

One commenter wrote that "the motivation for the proposed rule is to circumvent the holding in Matter of "Flight SR-4" , 10 I&N Dec. 197 (BIA 1963) and Air BVI, LTD., Flight BL 410 , SAJ 10/50.670, Decided by the Board August 26, 1992." The Service is not trying to circumvent these decisions; rather it is clarifying the regulation by amending it to conform to Congressional intent.

Regarding fines even though an alien was subsequently admitted, a 5th Circuit Court stated, in part:

And intrinsically, [the] 1952 Act which included for the first time nonimmigrant aliens contains terms indicating quite persuasively that Congress carefully distinguished between penalties against the carrier and the ultimate admission of the aliens. The Peninsular & Occidental Steamship Company v. The United States , 242 F. 2d 639 (5 Cir. 1957). See also the conclusions of the BIA in such cases as Matter of SS Florida , 5 I&N Dec. 85 (BIA 1954) and Matter of Plane "F-BHSQ" , 9 I&N Dec. 595 (BIA 1962).

The amending of the regulation also parallels the granting of a visa waiver to a lawful permanent resident. In 8 CFR 211.1(b)(3) it reads, in part:

Waiver of visas . An immigrant alien returning to an unrelinquished lawful permanent residence in the United States after a temporary absence abroad who satisfies the district director in charge of the port of entry that there is good cause for his failure to present an immigrant visa, Form I-151 or I-551, or reentry permit may, upon application on Form I-193, be granted a waiver of that requirement.

The regulation at 8 CFR 212.1(g) is being amended to read, in part:

Upon a nonimmigrant's application on Form I-193, a district director at a port of entry may, in an exercise of his or her discretion, on a case-by-case basis, waive the documentary requirements, if satisfied that the nonimmigrant cannot present the required documents because of an unforeseen emergency.

The clarification at 8 CFR 212.1(g) will give the Service the ability to exercise discretion to admit improperly documented nonimmigrants while penalizing carriers for the bringing of these aliens to the United States in violation of section 273 of the Act. This is similar to the granting of individual waivers to lawful permanent residents under 8 CFR 211.1(b)(3), which does not relieve the carrier of liability under section 273 of the Act. This has been the intent of Congress since the enactment of the I mmigration Act of 1924 which established section 16, the precursor to section 273 of the Immigration Act of 1952. This will clarify any ambiguity in the regulation regarding carriers' liability to ensure the transportation of properly documented aliens to the United States and the imposition of penalties for failure to do so.

One commenter claimed that the regulatory change violates the Regulatory Flexibility Act (5 U.S.C. 605(b)) because the rule will have a significant impact on a substantial number of small entities. The Service disagrees. The number of aliens entering the United States without documentation for unforeseen emergent reasons is sufficiently low that there is no likely harm to any small carrier. According to the Department of State, very few aliens apply for emergency visa waivers. Furthermore, fines are not imposed on carriers that have properly screened their passengers for proper documentation required to enter the United States. These penalties are imposed only for those cases where the carrier has failed to properly screen its passengers and permitted improperly documented aliens to board its aircraft or vessel. No carrier, whether small or large, need suffer any penalties under section 273 of the Act if it properly screens its passengers. To this end, the Service has and will continue to conduct train ing for carriers upon request to improve a carrier's screening procedures and thereby reducing its fines under section 273 of the Act.

In addition, carriers are having their fines burden reduced as a direct result of the passage of the Immigration and Nationality Technical Corrections Act of 1994, Public Law 103-416, which was signed by the President on October 25, 1994. Section 209(a)(6) Pub. L. 103-416 contained a technical amendment which added section 273(e) to the Act. The addition of section 273(e) to the Act permits the Service to reduce, refund, or waive fines under section 273 of the Act pursuant to such regulations as the Attor ney General shall prescribe in cases in which: (1) the carrier demonstrates that it had screened all passengers on the vessel or aircraft in accordance with procedures prescribed by the Attorney General, or (2) circumstances exist that the Attorney General determines would justify such reduction, refund, or waiver. The new legislation, corresponding regulations, and a Memorandum of Understanding (MOU) to be signed with individual carriers, will enable the Service to reduce, refund, or waive a fine imposed under section 273 of the Act for a carrier that demonstrates successful screening procedures by achieving satisfactory performance in the transportation of properly documented aliens to the United States. The Service will reward those carriers that follow the terms of the legislation or MOU and continue to impose financial penalties on carriers that fail to properly screen passengers. Increased carrier training and increased carrier cooperation with the Service are also expected to contribute to a reducti on in the arrival of improperly documented aliens to the United States. Regulations regarding fines mitigation will be published as a proposed rule, with comment period, in the Federal Register .

The commenter also claims that the proposed rule constitutes a "significant regulatory action." The Service does not agree. This rule clarifies § 212.1(g) to conform to Congressional intent on the boarding of improperly documented aliens. In spite of the Board's holdings to the effect that the old regulation did not allow the Service to fine a carrier for bringing nonimmigrants to the United States without the required documents when a visa waiver is subsequently granted at the port of entry, the Board h as never held that the carrier was not liable for fines in these circumstances under section 273 of the Act. Consequently, this rule simply amends the language to conform to Congressional intent, as recognized by the Board.

The commenter correctly states that "the legitimate goal of the Service is to protect the borders of the United States but only to the extent authorized by Congress and the Attorney General." He incorrectly states "no national security concern * * * would be served by the proposed change." The Service disagrees with this assertion. The Service is charged with continually encouraging carriers to properly screen their passengers prior to embarkation for the United States. Proper screening by trained carri er personnel overseas can and should prevent the arrival to the United States of aliens not in possession of proper documentation. Travel to the United States should be accomplished through the orderly procedures presently in place to ensure a legal flow of immigrants and nonimmigrants. Furthermore, a carrier cannot rely on the passenger's urgent need to travel on short notice, since considerations of personal expediency do not constitute due diligence contemplated by the statute ( Matter of Aircraft "VT DJK" , 12 I. & N. Dec. 267 (BIA 1967).

One commenter claimed it "defied logic [in cases where] * * * the [d]istrict [d]irector was satisfied that the alien was unable to present the required documents and, therefore, found good cause to grant a waiver" that the Service should fine the carrier. The reason that most waivers are given in the first place is not so much that the district director was satisfied that the alien was unable to present the required documents, but rather that the Service showed compassion to the alien for the mistake of t he carrier in boarding the alien and, further, determined that returning the alien to his or her port of embarkation would impose a significant hardship on the alien. This rule will permit the Service to continue to grant visa waivers in cases involving aliens not in possession of proper documentation to enter the United States, when otherwise admissible, but properly fine the carrier for allowing the alien to arrive in the United States in the first place.

One commenter claims that this rule will have an adverse effect on family well-being. Another commenter stated "the proposed rule will adversely affect the travelling public and reflect negatively upon the Service and air carriers. * * * " The Service disagrees. The Department of State and the Service already have in place the proper procedures which aliens, in emergent circumstances, may utilize to obtain authorization for travel to the United States without a visa or passport. The Service does not per ceive that family well-being will be affected whatsoever by this rule. Aliens who are not properly documented for travel to the United States must obtain permission from the Department of State and the Service before boarding a carrier. Accordingly, a carrier should not, under any circumstances, board an improperly documented alien without prior authorization from the Department of State and the Service.

The commenter further claims that the carrier should not be "penalized for showing the same compassion by transporting the passenger that the Service evidences by issuing a waiver." Again the Service disagrees. The decision to admit an alien without proper documentation is clearly vested in the Attorney General and the Secretary of State and not in the carrier.

One commenter is concerned about the Service's policy of proceeding with fines against carriers in certain cases involving improperly documented aliens arriving because "emergency medical treatment, for funerals, for visiting critically injured or dying relatives, and other 'unforeseen emergencies.'" The commenter further claims that "a carrier must have some latitude to determine that the passenger is travelling due to a valid emergency, such as a death in the family, a medical emergency, or the loss of a ll documents due to robbery, etc." The Service again disagrees. The statute vests discretionary authority in the Service and not in the carrier. Furthermore, as stated previously, procedures presently exist for aliens to obtain emergency waivers of both passport and visa from the Department of State with concurrence from the Service. According to section 212(d)(4) of the Act, as amended by the Immigration Act of 1990 (Pub. L. 101-649, dated November 29, 1990, 104 Stat. 5076), "[e]ither or both of the re quirements of paragraph (7)(B)(i) of subsection (a) may be waived by the Attorney General and the Secretary of State acting jointly (A) on the basis of unforeseen emergency in individual cases. * * * "

Furthermore, § 41.3 of 22 CFR states:

Under the authority of INA 212(d)(4), the documentary requirements of INA 212(a)(7)(B)(i)(I), (i)(II) may be waived for any alien in whose case the consular officer serving the port or place of embarkation is satisfied after consultation with, and concurrence by, the appropriate immigration officer, that the case falls within any of the following categories:

* * *

(d) Emergent circumstances; visa waiver . An alien well and favorably known at the consular office, who was previously issued a nonimmigrant visa which has expired, and who is proceeding directly to the United States under emergent circumstances which preclude the timely issuance of a visa.

The procedures for aliens seeking a passport or visa waiver for emergent reasons are also described in Title 9 of the Foreign Affairs Manual (FAM) part 41, section 3, in part, as follows: