WAIVERS BY JOINT ACTION OF CONSULAR AND IMMIGRATION OFFICERS OF PASSPORT AND/OR VISA REQUIREMENTS

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:

(a) Residents of Foreign Contiguous Territory; Visa and Passport Waiver

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(b) Aliens for Whom Passport Extension Facilities Are Unavailable; Passport Waiver

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(c) Aliens Precluded From Obtaining Passport Extensions by Foreign Government Restrictions; Passport Waiver

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(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.

(e) Members of Armed Forces of Foreign Countries; Visa and Passport Waiver

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(f) Landed Immigrants in Canada; Passport Waiver

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(g) Authorization to Individual Consular Office; Visa and/or Passport Waiver

An alien within the district of a consular office which has been authorized by the Department, because of unusual circumstances prevailing in that district, to join with immigration officers abroad in waivers of documentary requirements in specific categories of cases, and whose case falls within one of those categories.

Notes

N1 Transporting Undocumented Aliens to United States

Posts must inform carriers inquiring about transporting an undocumented alien that they would be subject to a fine unless such alien is within one of the categories listed in 22 CFR 41.2 or 41.3.

N2 Areas of Responsibility of Immigration Officers

Consular officers shall address requests for concurrence in waivers of passport and visa requirements to the immigration officer in charge, in care of the appropriate post as indicated in 9 FAM Part IV.

N3 Furnishing Information Concerning Waivers to Immigration Officers

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(7) A brief summary of the emergent circumstances surrounding the case which must include information indicating that all of the requirements of the subparagraph of 22 CFR 41.3 under which the waiver is recommended have been met; and

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N4 Issuing Documents to Waiver Beneficiaries

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Aliens in emergent circumstances can and should obtain a visa or a waiver of visa, if required, prior to boarding. These procedures are in place to ensure that aliens are not allowed to arrive in the United States without first being properly screened, unless waived by statute.

The Service respectfully declines the invitation of one commenter to "develop an agreed set of criteria to define an unforeseen emergency." There already exist procedures an alien must follow to apply for entry into the United States under emergent circumstances as previously explained. The Service expects aliens to follow these emergency procedures to obtain the proper documentation to enter the United States if they lack the necessary documentation. In instances of emergent circumstances and travel req uests occurring after the normal consulate business hours, consular officers are available for visa or passport waiver authorization on a case-by-case basis. To allow carriers the authority to determine admissibility of aliens not in possession of proper documentation at the port of embarkation would seriously undermine the enforcement of the Act and the security of the United States, and would circumvent existing immigration laws and regulations. As the carrier organizations admit, only immigration offic ers can determine the admissibility of an alien to the United States. The Service is not in a position to abdicate its authority or responsibility to safeguard the borders of the United States as Congress has mandated.

One commenter stated that the Service should never consider granting a visa waiver under emergent circumstances. The commenter states that "under no circumstances or unforeseen emergencies *** should [a government body] be authorized to grant entry into the United States [to any alien] without valid documentation." Furthermore, the same commenter concluded, "in the event that someone attempts to enter into the United States without proper credentials, they should be fined and deported to the place of orig inal entry. * * *" The statute authorizes a waiver of the documentary requirements in appropriate circumstances. In the case of a nonimmigrant who is otherwise admissible, a favorable exercise of that discretion is often appropriate to avoid unnecessary hardship.

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 the rule will not have significant economic impact on a substantial number of small entities. This rule merely removes any ambiguity between the current regulations and section 273 of the Act.

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 requirement contained in this rule has been cleared by the Office of Management and Budget under the provisions of the Paperwork Reduction Act. The OMB control number for this collection is contained in 8 CFR 299.5, Display of Control Numbers.

List of Subjects in 8 CFR Part 212

Aliens, Documentation, Nonimmigrant, Passport and visas, Waivers.

Accordingly, part 212 of chapter I of title 8 of the Code of Federal Regulations is amended as follows:

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

1. The authority citation for part 212 continues to read as follows:

Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1187, 1225, 1226, 1227, 1228, 1252; 8 CFR part 2.

2. In § 212.1, paragraph (g) is revised to read as follows:

§ 212.1 Documentary requirements for nonimmigrants.

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(g) Unforeseen emergency . A nonimmigrant seeking admission to the United States must present an unexpired visa and a passport valid for the amount of time set forth in section 212(a)(7)(B) of the Act, or a valid border crossing identification card at the time of application for admission, unless the nonimmigrant satisfies the requirements described in one or more of the paragraphs (a) through (f) or (i) of this section. Upon a nonimmigrant's application on Form I-193, a district director at a port of entry may, in the exercise o f 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 district director or the Deputy Commissioner may at any time revoke a waiver previously authorized pursuant to this paragraph and notify the nonimmigrant in writing to that effect.

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December 11, 1995 _________________ Dated:

Signed _______________________________ Doris Meissner, Commissioner,Immigration and Naturalization Service.