DOCUMENT NUMBER: FR 50-97

FEDERAL REGISTER CITE: 62 FR 48138

DATE OF PUBLICATION: September 12, 1997

BILLING CODE 4410-10-M

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 214

[INS 1427-93]

RIN 1115-AC51

Nonimmigrant Classes; Treaty Aliens; E Classification

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Final rule.

SUMMARY: This rule amends the Immigration and Naturalization Service ("the Service") regulations by codifying existing policy guidelines related to the "E" nonimmigrant treaty trader and treaty investor visa classification. This rule closely tracks a rule being published simultaneously by the Department of State ("State") and is intended to ensure consistent adjudication of applications for "E" nonimmigrant visa classification by the Service and State. It also furthers Congress' intent to facilitate trade and inve stment between the United States and countries with whom the United States has treaties and agreements.

DATES: This final rule is effective November 12, 1997.

FOR FURTHER INFORMATION CONTACT: Katharine Auchincloss-Lorr, Senior Adjudications Officer, Immigration and Naturalization Service, 425 I Street, NW, Room 7215, Washington, DC 20536, telephone (202) 514-5014.

SUPPLEMENTARY INFORMATION:

Background.

    The Service and State share responsibility for implementing section 101(a)(15)(E) of the Act. That section of the Act provides authority for the "E" nonimmigrant treaty trader and treaty investor visa classification. On August 30, 1991, the Service published a proposed rule and request for comments (due October 15, 1991) by parties interested in this subject in the Federal Register . See 56 FR 42952-57. On September 3, 1991, State published a proposed rule and request for comments (due November 4, 1991) on the same subject matter. State is publishing its final rule on "E" nonimmigrant visa classification, 22 CFR 41.51, simultaneously with this rule.

    In response to the proposed rule, the Service received and reviewed 15 detailed comments, many covering extremely varied issues. In addition, the Service reviewed 11 comments to State's proposed rule, some identical or similar to those it received. Many of these commenters noted that discrepancies in language between the two proposed rules might lead to inconsistent adjudication and deviation from established law and policy. These comments are well-taken. The final rules of the Service and State have been d rafted to be as uniform in form and substance as possible.

    In this regard, both agencies have harmonized their information and documentation requirements for determining eligibility for E nonimmigrant visa classification. The Service will in the future issue a revised Form I-129, which will incorporate State's Form, the E Visa Supplemental application Form, OF-156E, for determining eligibility for E nonimmigrant visa classification. Until that action occurs, this rule implements use of the existing Form I-129 with E Supplement by nonimmigrants seeking to change to or extend E classification in the United States.

General Changes From the Proposed Rule

    The Service has revised the format of its proposed rule to conform with State's final rule. In addition, in response to comments, the Service has modified the substance and language of its proposed rule where appropriate. Substantive differences between the Service's proposed rule and this final rule are explained in the discussion of the comments.

Jurisdictional Issues

    Some commenters argued that differences in Service and State regulatory language and terminology could lead to substantial discrepancies in interpretation and inconsistent adjudication, thereby inhibiting trade and investment in contravention of the United States' treaty obligations. These commenters urged the Service to defer to State on treaty alien issues, noting that eligibility for E nonimmigrant visa classification is based on treaties negotiated by State, raising foreign policy concerns more appropri ately addressed by that agency. On the other hand, some commenters encouraged State consular officers to facilitate the international travel and entry of E nonimmigrant visa holders by accepting automatically a Service-approved change of status to E classification.

    Under section 104 of the Act, State has exclusive jurisdiction over visa issuance and, therefore, is not bound by Service determinations of eligibility for E nonimmigrant classification. As State noted in its proposed rule, it may not, under this provision, automatically approve an application for an E nonimmigrant visa based on the Service's approval of an application for change of nonimmigrant status to, or an extension of stay in, E nonimmigrant classification. Rather, State must examine anew the alien's eligibility for E nonimmigrant visa classification, in accordance with current law and procedure, which is applicable to other nonimmigrant classifications, as well. For example, an alien admitted into the United States in B-2 (visitor)status, who subsequently applies for and is granted a change of nonimmigrant status to F-1 (student) status, cannot depart and seek

reentry as an F-1 unless a United States consular officer has determined the alien's eligibility for an F-1 visa.

    Conversely, under section 103 of the Act, the service has exclusive jurisdiction to adjudicate applications for admission to this country, as well as applications for change of nonimmigrant status to, or extensions of stay in, E nonimmigrant classification. In this regard, it should be noted that, unlike other employment-driven classifications, E nonimmigrant visa classification is not conferred by means of a petition, but instead by an application. Upon receipt of such applications, the Service is required to recheck independently an E nonimmigrant visa-holder's qualifications for admission into the E nonimmigrant visa classification. Moreover, consistent with section 103 of the Act, the Service may, but is not required to, consult with State in adjudicating applications for E nonimmigrant classification made following entry to the United States.

    Some commenters also inferred from the language of section 101(a)(45) of the Act, which delegates to State responsibility for establishing what constitutes a "substantial" amount of trade or capital, that congress intended to recognize State's "primary" jurisdiction over E nonimmigrant visa status eligibility. As previously indicated, the Service does not share such a view of the Act. Section 101(a)(45) of the Act reflects congress' understanding that, because of State's central role in negotiating, executi ng, and interpreting Bilateral Investment Treaties, it is the appropriate agency for interpreting this statutory term. Section 101(a)(45) is not intended, however, to limit the Service's authority under section 103 of the Act to adjudicate and determine requests for E nonimmigrant classification in cases within its jurisdiction.

Table Comparing the Service's and State's Final E Rules

    The following table provides a comparison of State's and the Service's final E nonimmigrant treaty trader and investor visa classification rules. An asterisk next to a State heading indicates that it is different from the Service's heading. State's headings that treat the same matter as those of the Service are marked "SAME." An asterisk next to a Service heading indicates there is no parallel State heading.

_________________________________________________________________

Service rule -- 8 CFR 214.2(e)	State rule -- 22 CFR 41.51
(1) Treaty trader (TT)	(a) SAME
(2) Treaty investor (TI)	(b) SAME
(3) Employee of TT or TI	(c) SAME
(4) Spouse/Children of TT and TI	(d) SAME
(5) Nonimmigrant intent	(e) Representative of Foreign Information Media*Information Media*
(6) Treaty country (TC)	(f) SAME
(7) Nationality of the TC	(g) SAME
(8) Terms and conditions of E status*	(h) Trade*
(9) Trade-definitions	(i) Item of Trade*
(10) Substantial trade	(j) SAME
(11) Principal trade	(k) SAME
(12) Investment	(l) SAME
(13) Bona fide enterprise	(m) SAME
(14) Substantial amount of capital	(n) SAME
(15) Marginal enterprise	(o) SAME
(16) Solely to direct and develop	(p) SAME
(17) Executive or supervisory character	(q) SAME
(18) Special qualifications	(r) SAME
(19) Period of admission*
(20) Extensions of stay*
(21) Change of status*
(22) Denial of treaty trade or investor status to citizens of Canada or Mexico in the case of certain labor disputes*

_________________________________________________________________

Definitions

    Unlike the proposed rule, this final rule does not contain a separate paragraph on definitions. Instead, terms are defined throughout the regulations.

Treaty Trader and Treaty Investor, 8 CFR 214.2(e) (1) and (2) (Corresponds With 22 CFR 41.51 (a) and (b))

    The proposed rule's definition of "primary treaty alien" at § 214.2(e)(2)(i), has now been broken into separate definitions of "treaty trader" and "treaty investor" in this final rule at § 214.2(e) (1) and (2). In response to commenters' concerns, the term "primary," used in the proposed rule, has been replaced in the final rule by the term "principal" for purposes of clarifying the treaty alien's relationship to his or her spouse or children.

    In determining whether an applicant is a treaty trader, commenters urged the Service to consider conditions in the treaty alien's home country which affect the alien's ability to carry on trade in accordance with State's proposed rule. The final rule incorporates this consideration as a factor in determining what constitutes substantial trade, although obviously at some point country conditions, in and of themselves, can become restrictive to trade that treaty eligibility must be denied. The portion of this paragraph concerning consideration of country conditions is adopted from State's definition of treaty trader at 22 CFR 41.51(a)(1).