[Federal Register: November 6, 2007 (Volume 72, Number 214)]
[Proposed Rules]
[Page 62593-62600]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06no07-15]
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DEPARTMENT OF HOMELAND SECURITY
Bureau of Customs and Border Protection
8 CFR Parts 100 and 212
[USCBP-2007-0084]
RIN 1651-AA71
Issuance of a Visa and Authorization for Temporary Admission Into
the United States for Certain Nonimmigrant Aliens Infected With HIV
AGENCY: Customs and Border Protection; DHS.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Department of Homeland Security (DHS) proposes to amend
the regulations pertaining to admission of certain nonimmigrants to the
United States. This rule proposes to authorize issuance of certain
short-term nonimmigrant visas and temporary admission for aliens who
are inadmissible solely due to their infection with the human
immunodeficiency virus (HIV). The proposed rule would provide, on a
limited and categorical basis, a more streamlined process to authorize
these nonimmigrant aliens to enter the United
[[Page 62594]]
States as visitors (for business or pleasure) for up to thirty days,
subject to certain conditions to ensure the control and departure of
such aliens. Nonimmigrant aliens who do not meet the specific
circumstances of these clarifying instructions or who do not wish to
consent to the conditions that would be imposed by this proposed rule
may still elect a case-by-case determination of their eligibility for a
waiver of the nonimmigrant visa requirements for aliens afflicted with
HIV. The proposed rule also updates regulatory language to conform to a
statutory change brought about by the Immigration Act of 1990.
DATES: Comments must be received on or before December 6, 2007.
ADDRESSES: You may submit comments, identified by docket number, by one
of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Mail: Border Security Regulations Branch, Customs and
Border Protection, 1300 Pennsylvania Avenue, NW. (Mint Annex),
Washington, DC 20229.
FOR FURTHER INFORMATION CONTACT: Michael D. Olszak, Customs and Border
Protection, Office of Field Operations, (703) 261-8424.
SUPPLEMENTARY INFORMATION:
I. Public Participation
Interested persons are invited to participate in this rulemaking by
submitting written data, views, or arguments on all aspects of the
proposed rule. DHS also invites comments that relate to the economic,
environmental, or federalism effects that might result from this
proposal. Comments that will provide the most assistance to DHS in
developing these procedures will reference a specific portion of the
proposal, explain the reason for any recommended change, and include
data, information, or authority that support such recommended change.
Instructions: All submissions received must include the agency name
and docket number for this rulemaking. All comments received will be
posted without change to http://www.regulations.gov, including any
personal information provided.
Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov. Submitted comments
may also be inspected on regular business days between the hours of 9
a.m. and 4:30 p.m. at the Office of International Trade, U.S. Customs
and Border Protection, 799 9th Street, NW., 5th Floor, Washington, DC.
Arrangements to inspect submitted comments should be made in advance by
calling Mr. Joseph Clark at (202) 572-8768.
II. Intent of the Proposed Rule
This proposed rule, initiated at the direction of the President
(see White House, Fact Sheet: World AIDS Day 2006, December 1, 2006)
through the Secretary of State (see Section VIII), would establish a
more streamlined process for issuance of a nonimmigrant visa and
temporary admission to the United States for aliens who are
inadmissible to the United States due to HIV infection. DHS is
proposing to allow these aliens to enter the United States as visitors
(for business or pleasure) for a temporary period not to exceed thirty
days, without being required to seek such admission under the more
complex (individualized, case-by-case) process provided under the
current DHS policy. The proposed rule would provide an additional
avenue for temporary admission of these aliens while minimizing costs
to the government and the risk to public health. These goals are
accomplished by setting requirements and conditions that govern an
alien's admission, affect certain aspects of his or her activities
while in the United States (e.g., using proper medication when
medically appropriate, avoiding behavior that can transmit the
infection), and ensure his or her departure after a short stay.
Nonimmigrant aliens who do not meet the specific circumstances of these
clarifying instructions or who do not wish to consent to the conditions
imposed by this rule may still elect a case-by-case determination of
their eligibility for a waiver of the nonimmigrant visa requirements
for aliens afflicted with HIV.
III. Applicable Law and Regulations
An alien infected with HIV is inadmissible to the United States
under section 212(a)(1)(A)(i) of the Immigration and Nationality Act of
1952 (INA), as amended, 8 U.S.C. 1182(a)(1)(A)(i). An inadmissible
alien may be temporarily admitted to the United States under INA
section 212(d)(3)(A), 8 U.S.C. 1182(d)(3)(A).
DHS may authorize temporary admission to the United States under 8
CFR 212.4(a) or (b). The categorical authorization process proposed in
this rule would be added to 8 CFR 212.4 in new paragraph (f).
IV. HIV Infection as a Ground of Inadmissibility
The INA has provided since 1952 that aliens ``who are afflicted
with any dangerous contagious disease'' are ineligible to receive a
visa and are to be excluded from admission into the United States.
Aliens infected with HIV have been inadmissible to the United States
since 1987, when Congress directed the Department of Health and Human
Services (HHS) to add HIV infection to its list of dangerous contagious
diseases. Public Law 100-71, section 518, 101 Stat. 475 (July 11,
1987); 52 FR 32543 (Aug. 28, 1987). Accordingly, aliens infected with
HIV have been ineligible to receive visas and have been excludable from
admission to the United States because of infection with a dangerous
contagious disease. See INA section 212(a)(6), 8 U.S.C. 1182(a)(6)
(1988).
In 1990, Congress amended the INA by revising the classes of
excludable aliens to provide that an alien ``who is determined (in
accordance with regulations prescribed by the Secretary of Health and
Human Services) to have a communicable disease of public health
significance'' is excludable from the United States. Immigration Act of
1990, Public Law 101-649, section 601, 104 Stat. 4978 (Jan. 23, 1990);
INA section 212(a)(1)(A)(i), 8 U.S.C. 1182(a)(1)(A)(i), (effective June
1, 1991). HHS subsequently published a proposed rule that would have
removed from the list all sexually transmitted diseases (including
HIV). 56 FR 2484 (Jan. 23, 1991). Based on comments received and
reconsideration of the issues, HHS published an interim rule retaining
all sexually transmitted diseases on the list and committing its
initial proposal to further study. 56 FR 25000 (May 31, 1991). While
HHS again considered a regulatory amendment to remove HIV from the
list, Congress amended INA section 212(a)(1) to specify that
``infection with the etiologic agent for acquired immune deficiency
syndrome'' is a communicable disease of public health significance,
thereby making explicit in the INA that aliens with HIV are ineligible
for admission into the United States. National Institutes of Health
Revitalization Act of 1993, Public Law 103-43, section 2007, 107 Stat.
122, (June 10, 1993).
The INA, as presently worded, makes inadmissible to the United
States any alien ``who is determined (in accordance with regulations
prescribed by the Secretary of Health and Human Services) to have a
communicable disease of public health significance, which shall include
infection with the
[[Page 62595]]
etiologic agent for acquired immune deficiency syndrome * * * .'' INA
section 212(a)(1)(A)(i), 8 U.S.C. 1182(a)(1)(A)(i). Therefore, any
alien infected with HIV is inadmissible to the United States.
V. Authority To Grant Temporary Admission
The Secretary of Homeland Security has broad discretionary
authority, subject to certain exceptions, to approve the issuance of a
nonimmigrant visa and the temporary admission into the United States of
an alien inadmissible due to many of the existing grounds of
inadmissibility, including HIV infection. See INA section 212(d)(3)(A),
8 U.S.C. 1182(d)(3)(A). Pursuant to INA section 212(d)(3)(A), 8 U.S.C.
1182(d)(3)(A), the Secretary of Homeland Security may not authorize
issuance of a nonimmigrant visa or admission into the United States of
an otherwise inadmissible alien if the alien's inadmissibility is based
on certain security or terrorism related grounds, specifically INA
sections 212(a)(3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C),
(3)(E)(i), and (3)(E)(ii), 8 U.S.C. 1182(a)(3)(A)(i)(I), (3)(A)(ii),
(3)(A)(iii), (3)(C), (3)(E)(i), and (3)(E)(ii). The Secretary is not
prohibited from authorizing the issuance of a nonimmigrant visa or
admission if the alien's inadmissibility is based on HIV infection
under INA section 212(a)(1)(A), 8 U.S.C. 1182(a)(1)(A) (health-related
grounds).
The Secretary of Homeland Security may authorize issuance of a
nonimmigrant visa and temporary admission to the United States (see INA
section 212(d)(3)(A)(i), 8 U.S.C. 1182(d)(3)(A)(i), and 8 CFR 212.4(a))
or authorize temporary admission only (see INA section
212(d)(3)(A)(ii), 8 U.S.C. 1182(d)(3)(A)(ii), and 8 CFR 212.4(b)).
Nonimmigrant aliens may seek a nonimmigrant visa and temporary
admission to the United States from a consular officer or the Secretary
of State. An alien who is applying for a nonimmigrant visa and is
known, or believed by, the consular officer to be ineligible for a
visa, may, after approval by the Secretary of Homeland Security of a
recommendation by the Secretary of State or by the consular officer
that the alien be admitted temporarily despite his inadmissibility, be
granted such a visa and may be admitted into the United States
temporarily in the discretion of the Secretary of Homeland Security.
[0] An applicant who has already been issued a nonimmigrant visa (or
who has been granted a waiver of the nonimmigrant visa requirement) may
apply to DHS for approval of temporary admission; such approval is
granted at the discretion of the Secretary of Homeland Security.
When Congress first enacted this authority to authorize admission
for nonimmigrants despite inadmissibility in 1952, the Committee on the
Judiciary stated that ``cases will continue to arise where there are
extenuating circumstances which justify the temporary admission of
otherwise inadmissible aliens, both for humane reasons and for reasons
of public interest.'' S. Rep. No. 1137, 82d Cong., 2d Sess. 12 (1952).
This statement of Congressional understanding and purpose has continued
validity today and supports the proposed streamlined process for
authorizing, on a categorical basis, issuance of a nonimmigrant visa
and temporary admission to the United States for HIV-positive aliens
seeking admission to the United States under B-1 (business visitor) or
B-2 (visitor for pleasure) nonimmigrant status who satisfy the
conditions discussed below.
The Secretary may exercise his discretion by rulemaking rather than
on a case-by-case basis. As the Supreme Court noted, ``[e]ven if a
statutory scheme requires individualized determinations * * *, the
decisionmaker has the authority to rely on rulemaking to resolve
certain issues of general applicability unless Congress clearly
expresses an intent to withhold that authority.'' Lopez v. Davis, 531
U.S. 230, 243-44 (2001) (quoting American Hosp. Ass'n v. NLRB, 499 U.S.
606, 612 (1999)) (emphasis added). See also id. at 244 (noting that
purely case-by-case decision making ``could invite favoritism,
disunity, and inconsistency''). Accordingly, ``it is a well-established
principle of administrative law that an agency to whom Congress grants
discretion may elect between rulemaking and ad hoc adjudication to
carry out its mandate.'' Yang v. INS, 79 F.3d 932, 936 (9th Cir.),
cert. denied, 519 U.S. 824 (1996).
Absent an indication of contrary Congressional intent in the INA,
the Secretary of Homeland Security may determine to exercise discretion
under INA section 212(d)(3)(A), 8 U.S.C. 1182(d)(3)(A), on a
categorical basis, to authorize issuance of a nonimmigrant visa to, and
admission of, otherwise inadmissible aliens, including aliens
inadmissible due to HIV infection. Unlike other provisions governing
the Secretary of Homeland Security's authority to waive grounds of
inadmissibility, the language of INA section 212(d)(3)(A) does not
clearly limit the Secretary's exercise of discretion under that
provision to case-by-case determinations. The reference in the last
sentence of section 212(d)(3)(A) to aliens, in the plural, provides
contextual support for the Secretary exercising this discretion on a
categorical basis. In contrast, an explicit waiver provision under the
INA specifically requires the exercise of discretion ``in individual
cases.'' INA section 212(d)(4), 8 U.S.C. 1182(d)(4) (permitting waiver
of ``[e]ither or both of the requirements'' of INA section
212(a)(7)(B)(i), 8 U.S.C. 1182(a)(7)(B)(i)). The lack of comparable
language limiting the Secretary's authority under INA section
212(d)(3)(A), 8 U.S.C. 1182(d)(3)(A), indicates that Congress did not
intend to prohibit the Secretary from exercising his authority on a
categorical basis under this section.
DHS has previously granted blanket authorization under INA section
212(d)(3)(A), 8 U.S.C. 1182(d)(3)(A), for specific, limited purposes,
such as to permit HIV-positive aliens to attend particular events,
including the Salt Lake City Olympic games, the United Nations General
Assembly Special Session on HIV/AIDS in 2001, various Universal
Fellowship of Metropolitan Community Churches events, and the 2006 Gay
Games in Chicago. The legislative history of INA section 212(d)(3), 8
U.S.C. 1182(d)(3), suggests that DHS should apply the provision where
``there are extenuating circumstances which justify the temporary
admission of otherwise admissible aliens, both for humane reasons and
for reasons of public interest.'' S. Rep. No. 1137, supra, at 12.
Authorization on a categorical basis, as proposed by this rule, would
require approval only by the consular officer or the Secretary of
State, provided that all requirements and conditions are satisfied;
authorization under more expansive terms and conditions will still
require individualized, case-by-case consideration by DHS.
VI. Current DHS Policy
DHS policy currently allows otherwise inadmissible aliens, pursuant
to INA section 212(d)(3)(A), 8 U.S.C. 1182(d)(3)(A), to apply for
admission on a case-by-case basis by employing a balancing test
involving several factors (regardless of whether the authorization is
applied for before a consular officer, the Secretary of State or
directly to DHS). Consideration is given to the risk of harm to society
if the applicant is admitted into the United States, the seriousness of
any immigration law or criminal law violations (the basis for
inadmissibility), and the nature of the reason for travel. See Matter
of Hranka, 16 I&N Dec. 491 (BIA 1978). These are
[[Page 62596]]
general criteria applicable to any application for authorization under
INA section 212(d)(3)(A), 8 U.S.C. 1182(d)(3)(A). This proposed rule
would incorporate current policy further developed in a series of
instructions from the former Immigration and Naturalization Service
(INS) and the Department of Justice.
In cases involving HIV-positive aliens, DHS policy requires that
consideration be given to whether: (1) The danger to the public health
is minimal, (2) the possibility of the transmission of the infection is
minimal, and (3) any cost will be incurred by any level of government
agency in the United States (local, state, or federal) without the
prior consent of that agency. Consular officers must find (based on
evidence provided by the applicant that satisfies reviewing officials)
that the former two factors are no more than minimal and that there
will not be a cost to an agency absent prior consent.
Other specific instructions clarify that nonimmigrant visas may be
granted and temporary admission may be provided to short-term
nonimmigrant individuals with HIV who establish that their entry into
the United States, for up to thirty days, would confer a public benefit
that outweighs any risk to the public health. A sufficient public
benefit can include attendance at academic or health-related activities
(including seeking medical treatment), conducting temporary business in
the United States, or visiting close family members in the United
States. Currently, applicants whose situations do not fit the specific
circumstances of these clarifying instructions, such as those entering
for periods of more than thirty days or for tourism purposes alone,
must apply for case-by-case consideration and authorization. These
applicants must satisfy the more general criteria of the general policy
(risk of harm to society, seriousness of immigration/criminal
violations, reason for travel), as these criteria apply to all
situations. Determination of the risk of harm to society includes
whether the danger to the public health and the possibility of
transmission of the infection are minimal and whether there will be any
cost incurred by any level of government agency in the United States.
In addition, supplemental instructions provide that DHS may grant
authorization for admission whenever the Secretary of HHS advises that
attendance at a scientific, professional, or academic conference in the
United States is in the public interest, and the alien establishes that
his or her visit to the United States is for the purpose of seeking
admission to such a designated conference and will not exceed ten days.
Under the current policy, these criteria are applied on a case-by-
case basis to applications (or a consular officer's or the Secretary of
State's recommendation) for authorization for admission. In practice,
DHS, the Department of State (DOS), and the Department of Justice
(DOJ)(through the former Immigration and Naturalization Service (INS))
have denied very few applications (or recommendations) for
authorization for admission when the specific criteria for short stays
of up to thirty days were satisfied or when the Secretary of HHS
initiated the designated-event waiver for visits of up to ten days.
However, some applications have been denied when the applicant failed
to meet all relevant criteria, e.g., when an applicant refused to
provide adequate assurance that he or she would comply with medical
advice against engaging in behavior that would risk transmitting the
infection to others.
In addition, under the general criteria, as applied in practice to
HIV-positive applicants for admission, these applicants must establish
that they are aware of their HIV positive condition, have received (and
are following) adequate medical counseling, are currently under medical
care, and are traveling to the United States with, or will have access
to, a supply of drugs, as medically appropriate, that is adequate to
cover the length of the anticipated stay. The applicant also must be
able to demonstrate that he or she has adequate insurance, which is
accepted in the United States, or other financial means available to
cover anticipated medical expenses.
VII. Experience Gained
During the twenty years since Congress directed HHS to add
infection with HIV to the list of dangerous contagious diseases, thus
adding infection with HIV as a ground of inadmissibility under the INA,
the Executive Branch has gained considerable experience in deciding
when to allow the admission of nonimmigrant aliens with HIV infection.
The history of this period has shown that DHS and the Department of
Justice have consistently approved DOS consular recommendations that
nonimmigrant visas be granted to aliens with HIV infection when the
applicant: Sought to travel to the United States for thirty days or
less for a lawful purpose consistent with the business visitor or
tourist nonimmigrant classification; had been diagnosed with HIV
infection; had received medical counseling; was in compliance with
medically-advised behavior and medically-prescribed treatment
protocols; was able to demonstrate availability once in the United
States of an adequate supply of antiretroviral medications if medically
appropriate; and was not likely to require assistance that would result
in any cost incurred by any level of government agency in the United
States without the prior consent of that agency.
HHS and its components also have gained considerable expertise
regarding the threat to the public posed by HIV-positive individuals.
HHS has expressed the view that present DHS policy has provided
adequate protection to the public health of the United States and HIV-
positive aliens who are aware of their medical conditions, receive
appropriate medical counseling, and are in compliance with medically
appropriate treatment protocols and medically advised behavior have
presented little risk to the public health in the United States.
VIII. Presidential Directive Predicating This Rulemaking
On December 1, 2006, President Bush directed the Secretary of State
to request that the Secretary of Homeland Security initiate a
rulemaking that would propose a categorical waiver of inadmissibility
for aliens who are HIV-positive and who seek to enter the United States
on short-term visas. In furtherance of the President's directive,
Secretary of State Rice, by letter dated June 6, 2007, recommended that
the Secretary of Homeland Security grant a limited waiver of
inadmissibility under the INA to persons who are currently inadmissible
to the United States solely due to their HIV-positive condition.
Secretary Rice specifically recommended a waiver for persons who seek
short-term B-1 and B-2 visas and do not have active, contagious,
symptomatic infections associated with HIV or AIDS.
DHS shares the President's and Secretary Rice's firm commitment to
enable, on a categorical basis, the admission into the United States
for short visits of HIV-positive aliens, who do not exhibit symptoms
indicative of an active AIDS-related condition that is contagious,
through a permanent, streamlined process that employs standardized
criteria as opposed to the current case-by-case, individualized
process.
IX. The Proposed Rule
DHS is proposing, on a categorical basis under new provisions of 8
CFR 212.4(f), to authorize issuance of visas and admission of
nonimmigrant aliens who are currently inadmissible to the
[[Page 62597]]
United States solely due to their HIV-positive status. DHS is proposing
this categorical authorization to allow application for admission to
the United States under B-1 (business visitor) or B-2 (visitor for
pleasure) status for a period not to exceed thirty days if the
applicant establishes specific facts and meets certain conditions.
A. Safeguards
This proposed rule does not conflict with Congress' restriction
regarding HIV as a communicable disease of public health significance
and is consistent with Congress' humanitarian purpose in enacting INA
section 212(d)(3)(A), 8 U.S.C. 1182(d)(3)(A). The proposed regulations
demonstrate DHS's recognition of the seriousness of HIV infection and,
at the same time, comply with the statute by prescribing ``conditions *
* * to control and regulate the admission and return of inadmissible
aliens applying for temporary admission.'' INA section 212(d)(3)(A), 8
U.S.C. 1182(d)(3)(A). Thus, under the proposed rule, an HIV-positive
applicant for a nonimmigrant visitor visa would be required to satisfy
criteria designed to ensure that the risk to the public health is
minimized to the greatest reasonable extent and that no cost will be
imposed on any level of government in the United States (local, state,
federal) without prior consent of a government agency. The short
duration of admission under the proposed regulations, and the various
conditions designed to control the alien's temporary stay and ensure
his or her return, minimize the risk of disease transmission in the
United States, as well as the risk of increased burden on our public
health resources. HIV-positive aliens not meeting the criteria under
the proposed regulations would still be able to seek individualized
(case-by-case) consideration for admission pursuant to INA section
212(d)(3)(A), 8 U.S.C. 1182(d)(3)(A), under current DHS policy.
B. Specific Conditions of Admission, Control, and Return
The proposed rule includes specific requirements (based in part on
criteria discussed above), which are set forth here by type.
(1) Medical etiology. A visa applicant, who has tested positive for
HIV, must show a controlled state of HIV infection such that there is
no anticipated need for additional medical care during the applicant's
visit to the United States. A controlled state of HIV infection means
that the applicant does not exhibit, at the time of application,
symptoms indicative of an active AIDS-related condition that is
contagious or that requires urgent treatment.
In cases involving HIV-positive aliens, DHS policy requires that
consideration be given to whether: (1) The danger to the public health
is minimal, (2) the possibility of the transmission of the infection is
minimal, and (3) any cost will be incurred by any level of government
agency in the United States (local, state, or federal) without the
prior consent of that agency. Consular officers must find (based on
evidence provided by the applicant that satisfies reviewing officials)
that the former two factors are no more than minimal and that there
will not be a cost to an agency absent prior consent.
(2) Understanding. The applicant must establish that he or she is
aware of, understands, and has been counseled on the nature and
severity of his or her medical condition. As part of this process, the
applicant also must establish that he or she has been counseled on and
is aware of the communicability of his or her medical condition,
including the fact that the applicant must not donate blood or blood
components.
(3) Limited potential health danger. The applicant must establish
that his or her admission to the United States for a short duration
poses minimal risk of danger to the public health in the United States.
The applicant must establish that his or her admission poses a minimal
risk of danger of transmission of the infection to any other person in
the United States through demonstration of knowledge of the routes of
transmission of HIV, including sexual contact, sharing needles, and
blood transfusions.
(4) Continuity of health care. As with existing policy, admission
is contingent upon assurances that the applicant will not impose costs
on the health care system of the United States. Accordingly, the
applicant must establish that he or she has, or will have access to, an
adequate supply of antiretroviral drugs if medically appropriate for
the anticipated stay in the United States. The Food and Drug
Administration (FDA) has developed enforcement policies under which it
may exercise its enforcement discretion not to interdict the
importation of unapproved medications for personal use in such
circumstances. See http://www.fda.gov/ora/compliance_ref/rpm/chapter9/ch9-2.html
.
Moreover, the applicant must establish that he or she possesses
sufficient assets or insurance, that is accepted in the United States,
that would cover any medical care that the applicant might require in
the event of illness at any time while in the United States. These two
factors lead to a third factor: The applicant must establish that his
or her admission will not create any cost to the United States, or a
state or local government, or any agency thereof, without the prior
written consent of that agency.
(5) Temporary Admission. The proposed categorical treatment, like
the individualized treatment under current DHS policy, is designed only
for a temporary admission. Accordingly, the applicant must establish
that he or she is seeking admission solely for activities that are
consistent with the B-1 (business visitor) or B-2 (visitor for
pleasure) nonimmigrant classifications. Travel for tourism only is an
activity consistent with this categorical admission. The applicant must
understand that because of his or her inadmissibility, he or she is not
eligible to seek admission under the Visa Waiver Program. INA section
217, 8 U.S.C. 1187. Under current statutes and regulations, all HIV-
positive applicants for admission from Visa Waiver Program countries
must apply for and be granted a visa to be admitted to the United
States. The applicant must also understand and agree that no single
admission to the United States will be for more than thirty days.
Because the proposed regulations apply to a specific ground of
inadmissibility, the applicant must establish that no other ground of
inadmissibility applies. Authorization for admission may not be granted
if any other ground of inadmissibility exists. If the applicant
requires an additional waiver of inadmissibility, the applicant must
use the process described in either 8 CFR 212.4(a) or (b), as
applicable.
(6) Enforcement of the Authorization Agreement. As this
authorization for admission is being granted for a narrow, limited
purpose, DHS believes that the applicant must agree to certain
conditions. DHS believes that the applicant must understand and agree
in writing, once the Department of State issues a waiver form, that he
or she, for the purpose of admission pursuant to this waiver, is
waiving the opportunity to apply for any extension of nonimmigrant
stay, a change of nonimmigrant status, or adjustment of status to that
of permanent resident,\1\ whether filed affirmatively with DHS or
defensively in response to an action for removal. DHS alternatively
solicits comments on whether consular officers may orally advise or
provide written notification to the applicant that he or
[[Page 62598]]
she has waived the opportunity to apply for any extension of
nonimmigrant stay, a change of nonimmigrant status, or adjustment of
status to that of permanent resident in lieu of the applicant executing
a written waiver of these opportunities. If the applicant chooses not
to waive the opportunity to apply for any extension of nonimmigrant
stay, a change of nonimmigrant status, or adjustment of status to that
of permanent resident, the applicant is not eligible for the
streamlined process delineated in this proposed rule. However, the
applicant may still elect a case-by-case determination of his or her
eligibility for a waiver of the nonimmigrant visa requirements for
aliens afflicted with HIV.
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\1\ Nothing within this proposed rule would prohibit an alien
from applying for an immigrant visa before a consular officer
abroad.
---------------------------------------------------------------------------
Furthermore, under the proposed rule, an applicant must understand
and agree that any failure to comply with conditions of admission will
make him/her permanently ineligible for authorization for admission
under the proposed regulations.
(7) Duration. The nonimmigrant visa issued to the applicant will be
valid for twelve months or less and may be used for a maximum of two
applications for admission. The authorized period of stay will be for
thirty calendar days calculated from the initial admission under this
visa. The holder of the nonimmigrant visa will be permitted to apply
for admission at a United States port of entry at any time during the
validity of the visa if he or she is otherwise admissible in B-1
(business visitor) or B-2 (visitor for pleasure) nonimmigrant status.
C. Benefit of the Proposed Regulations
An alien inadmissible to the United States due to HIV infection
under INA section 212(a)(1)(A)(i), 8 U.S.C. 1182(a)(1)(A)(i) (or any
other ground of inadmissibility under section 212(a), 8 U.S.C. 1182(a),
except (3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C), (3)(E)(i), or
(3)(E)(ii)), has been, and is currently, able to apply for admission
pursuant to INA section 212(d)(3)(A), 8 U.S.C. 1182(d)(3)(A), under
either 8 CFR 212.4(a) or (b). Although authorization for admission
pursuant to 8 CFR 212.4(a) is sought from a consular officer or the
Secretary of State, it is an application for issuance of a nonimmigrant
visa and temporary admission that requires the approval of the
Secretary of Homeland Security. Authorization for admission pursuant to
8 CFR 212.4(b) is applied for, with payment of a fee, directly to DHS
(on Form I-192) by an alien who already has a nonimmigrant visa, or for
whom the nonimmigrant visa requirement is waived, and is approved at
the discretion of the Secretary of Homeland Security.
These existing processes require action by DHS upon submission of
eligibility information (the same kind of information that is required
under the proposed regulations) that must be reviewed, evaluated, and
ruled upon on a case-by-case (or individualized) basis. In contrast,
the proposed regulation would authorize a consular officer or the
Secretary of State to categorically grant a nonimmigrant visa and
authorize the applicant to apply for admission into the United States,
notwithstanding an applicant's inadmissibility due to HIV infection, if
the applicant meets applicable requirements and conditions, without the
additional step of seeking review and decision by DHS prior to granting
of the nonimmigrant visa. Using a categorical authorization would
provide a more streamlined and quicker process for obtaining temporary
admission under INA section 212(d)(3)(A)(i), 8 U.S.C. 1182(d)(3)(A)(i).
X. Other Proposed Amendment
DHS also is proposing to amend 8 CFR 212.4(e) to reflect changes in
the grounds of inadmissibility brought about by the Immigration Act of
1990. Section 212.4(e) authorizes the temporary admission of a
nonimmigrant visitor notwithstanding inadmissibility under INA section
212(a)(1), if the alien is accompanied by a member of his or her family
or a guardian. Prior to June 1, 1991, INA section 212(a)(1) made
excludable from the United States aliens who were ``mentally
retarded.'' Effective June 1, 1991, the Immigration Act of 1990
reorganized all medical grounds of excludability into a new general
provision, INA section 212(a)(1). The references in 8 CFR 212.4(e) to
INA section 212(a)(1) were never updated. There is no present ground of
inadmissibility for aliens who are ``mentally retarded.'' However, INA
sections 212(a)(1)(A)(iii)(I) and 212(a)(1)(A)(iii)(II), 8 U.S.C.
1182(a)(1)(A)(iii)(I) and 8 U.S.C. 1182(a)(1)(A)(iii)(II), make
inadmissible aliens who have, or have had, a mental disorder with
associated threatening or harmful behavior. DHS is proposing to amend 8
CFR 212.4(e) by replacing the references to INA section 212(a)(1) with
references to the current INA sections relating to the grounds of
inadmissibility for aliens with mental disorders, INA sections
212(a)(1)(A)(iii)(I) and 212(a)(1)(A)(iii)(II). As neither the current
nor the proposed regulations authorize the granting of a nonimmigrant
visa, only aliens who already have facially valid nonimmigrant visas or
for whom the nonimmigrant visa requirement is waived would be able to
benefit from the proposed amendment to 8 CFR 212.4(e).
XI. Statutory and Regulatory Reviews
A. Regulatory Flexibility Act.
DHS has reviewed the proposed rule in accordance with the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.), and, by approving
it, certifies that this rule will not have a significant economic
impact on a substantial number of small entities. The individual aliens
to whom this rule applies are not small entities as that term is
defined in 5 U.S.C. 601(6). Thus, the RFA does not apply.
B. Unfunded Mandates Reform Act of 1995
The proposed 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 one-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.
C. Executive Order 12866
This rule has been determined to be a significant regulatory action
under Executive Order 12866, section 3(f), Regulatory Planning and
Review. Accordingly, this regulation has been submitted to the Office
of Management and Budget for review. There are no new costs to the
public associated with this rule. This rule does not create any new or
additional requirements.
D. Executive Order 13132
The proposed rule 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, this rule does not have sufficient federalism
implications to warrant the preparation of a federalism summary impact
statement.
E. Executive Order 12988
The proposed rule meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice
Reform.
F. Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995, Public Law 104-13, all
[[Page 62599]]
Departments are required to submit to OMB, for review and approval, any
reporting and recordkeeping requirements inherent in a rule. This rule
does not impose any new reporting or recordkeeping requirements under
the Paperwork Reduction Act.
List of Subjects
8 CFR Part 100
Organization and functions (Government agencies).
8 CFR Part 212
Administrative practice and procedure, Aliens, Immigration,
Passports and visas.
Proposed Amendments to the Regulations
For the reasons stated in the preamble, parts 100 and 212 of
chapter I of title 8 of the Code of Federal Regulations (8 CFR parts
100 and 212) are proposed to be amended as follows:
PART 100--STATEMENT OF ORGANIZATION
1. The general authority citation for part 100 continues to read as
follows:
Authority: 8 U.S.C. 1103; 8 CFR part 2.
Sec. 100.7 [Amended]
2. Section 100.7 is amended by removing the citation ``212.4(g)''
in the list of parts and sections and adding in its place the citation
``212.4(h)''.
PART 212--DOCUMENTARY REQUIREMENTS; NONIMMIGRANTS; WAIVERS;
ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE
3. The general authority citation for part 212 continues to read as
follows:
Authority: 8 U.S.C. 1101 and note, 1102, 1103, 1182 and note,
1184, 1187, 1223, 1225, 1226, 1227; 8 U.S.C. 1185 note (section 7209
of Pub. L. 108-458).
* * * * *
4. Section 212.4 is amended by:
a. In paragraph (e), removing the citation ``212(a)(1)'' in the
paragraph text and adding in its place ``212(a)(1)(A)(iii)'', and
removing the citation ``212(a)(1) of the Act'' and adding in its place
``212(a)(1)(A)(iii)(I) or (II) of the Act due to a mental disorder and
associated threatening or harmful behavior'';
b. Redesignating paragraphs (f), (g), (h), and (i) as paragraphs
(g), (h), (i), and (j) and adding new paragraph (f) to read as follows:
Sec. 212.4 Applications for the exercise of discretion under section
212(d)(1) and 212(d)(3).
* * * * *
(f) Inadmissibility under section 212(a)(1) for aliens inadmissible
due to HIV.
(1) General. Pursuant to the authority in section 212(d)(3)(A)(i)
of the Act, any alien who is inadmissible under section 212(a)(1)(A)(i)
of the Act due to infection with the etiologic agent for acquired
immune deficiency syndrome (HIV infection) may be issued a B-1
(business visitor) or B-2 (visitor for pleasure) nonimmigrant visa by a
consular officer or the Secretary of State, and be authorized for
temporary admission into the United States for a period not to exceed
thirty days, provided that the authorization is granted in accordance
with paragraphs (f)(2) through (f)(7) of this section. Application
under this paragraph (f) may not be combined with any other waiver of
inadmissibility.
(2) Conditions. An alien with HIV infection who applies for a
nonimmigrant visa before a consular officer may be issued a B-1
(business visitor) or B-2 (visitor for pleasure) nonimmigrant visa and
admitted to the United States for a period not to exceed thirty days,
provided that the applicant establishes that:
(i) The applicant has tested positive for HIV;
(ii) The applicant is not currently exhibiting symptoms indicative
of an active, contagious infection associated with acquired immune
deficiency syndrome;
(iii) The applicant is aware of, has been counseled on, and
understands the nature, severity, and the communicability of his
medical condition;
(iv) The applicant's admission poses a minimal risk of danger to
the public health in the United States and poses a minimal risk of
danger of transmission of the infection to any other person in the
United States;
(v) The applicant will have in his or her possession, or will have
access to, as medically appropriate, an adequate supply of
antiretroviral drugs for the anticipated stay in the United States and
possesses sufficient assets, such as insurance that is accepted in the
United States, to cover any medical care that the applicant may require
in the event of illness at any time while in the United States;
(vi) The applicant's admission will not create any cost to the
United States, or a state or local government, or any agency thereof,
without the prior written consent of the agency;
(vii) The applicant is seeking admission solely for activities that
are consistent with the B-1 (business visitor) or B-2 (visitor for
pleasure) nonimmigrant classification;
(viii) The applicant is aware that no single admission to the
United States will be for a period that exceeds 30 days;
(ix) The applicant is otherwise admissible to the United States and
no other ground of inadmissibility applies;
(x) The applicant is aware that he or she cannot be admitted under
section 217 of the Act (Visa Waiver Program);
(xi) The applicant is aware that any failure to comply with any
condition of admission set forth under this paragraph (f) will
thereafter make him or her ineligible for authorization under this
paragraph; and
(xii) The applicant, for the purpose of admission pursuant to a
waiver under this paragraph (f), waives any opportunity to apply for an
extension of nonimmigrant stay, a change of nonimmigrant status, or
adjustment of status to that of permanent resident;
(3) Nonimmigrant visa. A nonimmigrant visa issued to the applicant
for purposes of temporary admission under section 212(d)(3)(A)(i) of
the Act and this paragraph (f) may not be valid for more than 12 months
or for more than two applications for admission during the 12 month
period. The authorized period of stay will be for thirty calendar days
calculated from the initial admission under this visa.
(4) Application at U.S. port. If otherwise admissible, a holder of
the nonimmigrant visa issued under section 212(d)(3)(A)(i) of the Act
and this paragraph (f) is authorized to apply for admission at a United
States port of entry at any time during the period of validity of the
visa in only the B-1 (business visitor) or B-2 (visitor for pleasure)
nonimmigrant categories.
(5) Admission limited. Notwithstanding any other provision of this
chapter, no single period of admission under section 212(d)(3)(A)(i) of
the Act and this paragraph (f) may be authorized for more than 30 days.
(6) Failure to comply. No authorization under section
212(d)(3)(A)(i) of the Act and this paragraph (f) may be provided to
any alien who has previously failed to comply with any condition of an
admission authorized under this paragraph.
(7) Additional limitations. The Secretary of Homeland Security or
the Secretary of State may require additional evidence or impose
additional conditions on granting authorization for temporary
admissions under this paragraph (f) as international conditions may
indicate.
[[Page 62600]]
(8) Option for case-by-case determination. If the applicant does
not meet the criteria under this paragraph (f), or does not wish to
agree to the conditions for the streamlined 30-day visa under this
paragraph (f), the applicant may elect to utilize the process described
in either paragraph (a) or (b) of this section, as applicable.
* * * * *
Michael Chertoff,
Secretary.
[FR Doc. E7-21841 Filed 11-5-07; 8:45 am]
BILLING CODE 9111-14-P