SUMMARY: To comply with the Department of Homeland Security regulation requiring sponsoring employers to file petitions for all aliens for whom R-1 nonimmigrant status is sought. This rule establishes the requirement that consular officers ensure that R-1 visa applicants have obtained an approved U.S. Citizenship and Immigration Services Form I-129
petition from the Department of Homeland Security before issuance of a visa.
DATES: This rule is effective October 6, 2009.
FOR FURTHER INFORMATION CONTACT: Lauren A. Prosnik, Legislation and Regulations
Division, Visa Services, Department of State, 2401 E Street, NW., Room L-603D,
Washington, DC 20520-0106, (202) 663-2951.
Why is the Department promulgating this rule?
On November 26, 2008, the Department of Homeland Security (DHS) promulgated
regulations requiring sponsoring employers to file petitions for all aliens
for whom R-1 nonimmigrant status is sought. 73 FR 72276. As a result, the requirements
for an R-1 nonimmigrant visa now include establishing that the applicant is
the beneficiary of an approved petition. U.S. Citizenship and Immigration Services
(USCIS) has implemented the petition requirement for nonimmigrant religious
workers as a way to determine the bona fides of a petitioning religious organization
located in the United States and to determine that a religious worker will be admitted to the United States to work for a specific religious organization
at the request of that religious organization. This rule amends the Department regulations to ensure consistency with the regulations set forth by DHS.
Administrative Procedure Act:
This regulation involves a foreign affairs function of the United States and,
therefore, in accordance with 5 U.S.C. 553(a)(1), is not subject to the rule
making procedures set forth at 5 U.S.C. 553.
Regulatory Flexibility Act/Executive Order 13272: Small Business:
Because this final rule is exempt from notice and comment rulemaking under
5 U.S.C. 553, it is exempt from the regulatory flexibility analysis requirements
set forth at sections 603 and 604 of the Regulatory Flexibility Act (5 U.S.C.
603 and 604). Nonetheless, consistent with section 605(b) of the Regulatory
Flexibility Act (5 U.S.C. 605(b)), the Department certifies that this rule will
not have a significant economic impact on a substantial number of small entities.
This regulates individual aliens who seek consideration for R-1 nonimmigrant
visas and does not affect any small entities, as defined in 5 U.S.C. 601(6).
The Unfunded Mandates Reform Act of 1995:
Section 202 of the Unfunded Mandates Reform Act of 1995 (UFMA), Public Law
104-4, 109 Stat. 48, 2 U.S.C. 1532, generally requires agencies to prepare a
statement before proposing any rule that may result in an annual expenditure
of $100 million or more by State, local, or tribal governments, or by the private
sector. This rule will not result in any such expenditure, nor will it significantly
or uniquely affect small governments.
The Small Business Regulatory Enforcement Fairness Act of 1996:
This rule is not a major rule as defined by 5 U.S.C. 804, for purposes of congressional
review of agency rulemaking under the Small Business Regulatory Enforcement
Fairness Act of 1996, Public Law 104- 121. 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 adverse effects on competition, employment, investment, productivity,
innovation, or the ability of United States-based companies to compete with
foreign based companies in domestic and import markets.
Executive Order 12866:
The Department of State has reviewed this proposed rule to ensure its consistency
with the regulatory philosophy and principles set forth in Executive Order 12866
and has determined that the benefits of this final regulation justify its costs.
The Department does not consider this final rule to be an economically significant
action within the scope of section 3(f)(1) of the Executive Order since it is
not likely to have an annual effect on the economy of $100 million or more or
to adversely affect in a material way the economy, a sector of the economy,
competition, jobs, the environment, public health or safety, or State, local
or tribal governments or communities.
Executive Orders 12372 and 13132: Federalism:
This regulation will not have substantial direct effects on the States, on
the relationship between the national government and the States, or the distribution
of power and responsibilities among the various levels of government. Nor will
the rule have federalism implications warranting the application of Executive
Orders No. 12372 and No. 13132.
Executive Order 12988: Civil Justice Reform:
The Department has reviewed the regulations in light of sections 3(a) and 3(b)(2)
of Executive Order No. 12988 to eliminate ambiguity, minimize litigation, establish
clear legal standards, and reduce burden.
Paperwork Reduction Act:
This rule does not impose information collection requirements under the provisions
of the Paperwork Reduction Act, 44 U.S.C., Chapter 35.
List of Subjects in 22 CFR Part 41
Aliens, Foreign officials, Immigration, Nonimmigrants, Passports and Visas.
For the reasons stated in the preamble, the Department of State amends 22 CFR
Part 41 as follows:
1. The authority citation for part 41 continues to read as follows:
Authority: 8 U.S.C. 1104; Public Law 105-277, 112 Stat. 2681- 795 through 2681-801;
8 U.S.C.1185 note (section 7209 of Pub. L. 108-458, as amended by section 546
of Pub. L. 109-295).
2. Revise Sec. 41.58 to read as follows:
Sec. 41.58 Aliens in religious occupations.
(a) Requirements for ``R'' classification. An alien shall be classifiable under
the provisions of INA 101(a)(15)(R) if:
(1) The consular officer is satisfied that the alien qualifies under the provisions
of that section; and
(2) With respect to the principal alien, the consular officer has received
official evidence of the approval by USCIS of a petition to accord such classification
or the extension by USCIS of the period of authorized stay in such classification;
(3) The alien is the spouse or child of an alien so classified and is accompanying
or following to join the principal alien.
(b) Petition approval. The approval of a petition by USCIS does not establish
that the alien is eligible to receive a nonimmigrant visa.
(c) Validity of visa. The period of validity of a visa issued on the basis
of paragraph (a) to this section must not precede or exceed the period indicated
in the petition, notification, or confirmation required in paragraph (a)(2)
of this section.
(d) Aliens not entitled to classification under INA 101(a)(15)(R). The consular officer must suspend action on the alien's application and submit a report to the approving USCIS office if the consular officer knows or has reason to believe that an alien applying for a visa under INA 101(a)(15)(R) is not entitled to the classification as approved.