Visas: Documentation of Immigrants--Victims of Terrorism
AGENCY: Department of State.
ACTION: Interim rule with request for comments.
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SUMMARY: This rule amends the Department's regulations concerning
immigrant visas. Recent legislation, commonly known as the USA Patriot
Act, permits certain victims of the September 11, 2001 terrorist attack
to file petitions for classification as special immigrants. This rule
implements these provisions by creating a new visa classification
``SP'' for these immigrants and sets forth the eligibility requirements
for the issuance of an immigrant visa in that category.
DATES: Effective date: This interim rule is effective on May 8, 2003.
Comment date: The Department will consider written comments
submitted on or before July 7, 2003.
ADDRESSES: Please submit comments to the Chief, Legislation and
Regulations Division, Visa Services, Department of State, 20522-0106,
e-mail VisaRegs@state.gov, or fax to (202) 663-3898.
FOR FURTHER INFORMATION CONTACT: Pam Chavez, Legislation and
Regulations Division, Visa Services, Department of State, Washington,
DC 20522-0106, phone (202) 663-1206.
SUPPLEMENTARY INFORMATION:
What Is the Authority for This Rule?
On October 26, 2001, the President signed into law the ``Uniting
and Strengthening America Act by Providing Appropriate Tools Required
to Intercept and Obstruct Terrorism (USA Patriot) Act,'' Public Law
107-56. Section 421 of the USA Patriot Act provides special immigrant
status for certain victims of the terrorist attack of September 11,
2001 who file petitions for classification under the Immigration and
Nationality Act (INA) section 203(b)(4).
Who Is Entitled to the Special Immigrant ``SP'' Classification?
Principal Alien
An alien is entitled to classification as an ``SP'' special
immigrant if the alien can demonstrate to the Attorney General that
(1) He or she is the beneficiary of a petition, filed on or before
September 11, 2001, for classification as an immigrant under INA 203(a)
or (b) or as a nonimmigrant under INA 101(a)(15)(K); or
(2) He or she is the beneficiary of a labor certification
application filed on or before September 11, 2001.
Additionally, the alien must present evidence that the petition or
labor certification application was revoked, terminated or rendered
null, either before or after its approval, due directly to the attack
of September 11, 2001, that resulted in the death or disability of the
petitioner, beneficiary, or applicant; or caused loss of employment due
to physical damage to, or destruction of, the business of the
petitioner or the applicant.
Spouse or Child
The spouse or child of an alien who meets the description of a
``principal alien'' (whether the principal alien is living or deceased)
may be classified as an ``SP'' if the familial relationship existed on
September 10, 2001; and if the spouse or child is
(1) Accompanying the principal alien; or
(2) Following-to-join the principal alien no later than September
11, 2003. In the case of a deceased principal alien, the requirement
for accompanying or following to join is disregarded.
Grandparent of an Orphan
The grandparent of a child may be classified as an ``SP'', if the
child is left with no parents as a direct result of a terrorist attack
on September 11, 2001, if either parent was a U.S. citizen, a U.S.
national, or a lawful U.S. permanent resident on September 10, 2001.
The grandparent must also demonstrate that he or she is coming to the
U.S. to assume legal custody of the child.
What Evidence Must Be Presented To Show That the Alien Was the Victim
of the September 11, 2001, Terrorist Attack?
To qualify for classification as an ``SP'' immigrant, the alien
must demonstrate to the Secretary of Homeland Security that he or she
is a ``victim of a specified terrorist activity'', defined in the USA
Patriot Act as any terrorist activity conducted against the Government
or the people of the United States on September 11, 2001. The INS is
responsible for approval of the petition, and thus responsible for
determining if the alien has presented satisfactory evidence that he or
she is a victim of a September 11, 2001 terrorist attack.
Are Aliens in the ``SP'' Category Subject to the Grounds Visa
Inadmissiblity?
Aliens in the ``SP'' are subject to all grounds of ineligibility
except INA 212(a)(4).
How Will Aliens in the ``SP'' Category Be Assigned a Priority Date?
The Immigration and Naturalization (INS) will assign a priority
date at the time the fourth preference petition is filed. Consular
officers will issue visas in the chronological order in which the
petitions were submitted to the INS. However, if the annual limit under
INA 203 is met, the alien may use the priority date of the revoked
petition.
How Is the Department Amending Its Regulation?
The Department is amending 22 CFR 42.32(d) by adding a new fourth
preference classification paragraph (9) clarifying entitlement to
special immigrant status under the USA Patriot Act. This rule
authorizes consular officers to accord fourth preference employment-
based special immigrant classification to certain victims of the
September 11, 2001, terrorist attacks. As with other classes of fourth
preference employment-based immigrants, the alien must be the
beneficiary of an approved petition.
Regulatory Analysis and Notices
Administrative Procedure Act
The Department's implementation of this regulation as an interim
rule is based upon the ``good cause'' exceptions found at 5 U.S.C.
553(b)(B) and (d)(3). As the amendment to the regulation simply
implements without interpretation a legislative mandate that provides a
benefit to aliens by extending special immigrant status to a specific
class of aliens, the Department has determined that it is unnecessary
to publish a proposed rule. In view of this benefit and since the
amendment applies to visas made available in any fiscal year beginning
immediately, the rule will be made effective immediately upon
publication in the Federal Register.
Regulatory Flexibility Act
The Department of State, in accordance with the Regulatory
Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by
approving it, certifies that this rule is not expected to have a
significant economic impact on a substantial number of small entities.
[[Page 24639]]
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any year and it will not significantly or uniquely
affect small governments. Therefore, no actions were deemed necessary
under the provisions of the Unfunded Mandates Reform Act of 1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 804 of the
Small Business Regulatory Enforcement Act of 1996. 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 significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.
Executive Order 12866
Although this rule is being promulgated in conjunction with the
Immigration and Naturalization Service, a domestic agency, the
Department of State does not consider this rule to be a ``significant
regulatory action'' under Executive Order 12866, section (3)(f),
Regulatory Planning and Review. Therefore, in accordance with the
letter to the Department of State of February 4, 1994 from the Director
of the Office of Management and Budget, it does not require review by
the Office of Management and Budget.
Executive Order 13132
This regulation 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 section 6
of Executive Order 13132, it is determined that this rule does not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.
Paperwork Reduction Act
This rule does not impose any new reporting or record-keeping
requirements under the Paperwork Reduction Act.
List of Subjects in 22 CFR Part 42
Aliens, Immigrants, Passports and visas.
For the reasons set forth in the preamble, the Department is amending
the regulations at 22 CFR part 42 to read as follows:
PART 42--[AMENDED]
1. The authority citation for part 42 is revised to read as follows:
Authority: 8 U.S.C. 1104; Pub. L. 107-56, sec. 421.
2. Amend Sec. 42.32(d) by adding a new paragraph (9) to read as
follows:
Sec. 42.32 Employment-based preference immigrants.
* * * * *
(d) * * *
(9) Certain Victims of the September 11, 2001 terrorist attacks.
(i) Entitlement to status. An alien shall be classifiable as a special
immigrant under INA 203(b)(4) as specified in section 421 of Public Law
107-56, if:
(A) The consular officer has received a petition approved by the
INS to accord such classification, or official notification of such an
approval, and the consular officer is satisfied from the evidence
presented that the alien is entitled to that classification; or
(B) The alien is the spouse or child of an alien so classified in
paragraph (d)(9)(i) of this section and is accompanying or following to
join the principal alien.
(ii) Ineligibility exemption. An alien classified under paragraph
(d)(9)(i) of this section shall not be subject to the provisions of INA
212(a)(4).
(iii) Priority date. Aliens entitled to status under paragraph
(d)(9)(i) of this section shall be assigned a priority date as of the
date the petition was filed under INA 204 for classification under
section INA 203(b)(4) and visas shall be issued in the chronological
order of application submission. However, in the event that the annual
limit for immigrants under INA 203 is reached, the alien may retain the
earlier priority date of the petition that was revoked.
* * * * *
Dated: January 3, 2003.
Maura Harty,
Assistant Secretary for Consular Affairs, Department of State.
[FR Doc. 03-11222 Filed 5-7-03; 8:45 am]
BILLING CODE 4710-06-P
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