AGENCY:

Department of State.

ACTION:

Final rule.

SUMMARY:

This rule is promulgated to implement the Adoptive Family Relief Act (the Act), which allows for the waiver or refund of fees relating to the renewal or replacement of an immigrant visa for certain already-adopted children where the adopted child was unable to use his or her initially issued immigrant visa as a direct result of extraordinary circumstances. The Department is also amending its regulations regarding immigrant visa application procedures to cover new technologies, application forms, and procedures that have been implemented in recent years.

DATES:

This rule is effective on July 23, 2019.

FOR FURTHER INFORMATION CONTACT:

Jorge Abudei, Management Analyst, Office of the Comptroller, Bureau of Consular Affairs, Department of State; phone: 202-485-6697, telefax: 202-485-6826; email: fees@state.gov.

SUPPLEMENTARY INFORMATION:

Why is the Department promulgating this rule?

The Adoptive Family Relief Act (Pub. L. 114-70) (the Act) amended Section 221(c) of the Immigration and Nationality Act (INA), 8 U.S.C. 1201(c), to allow for the waiver or refund of certain immigrant visa fees for a lawfully adopted child, or a child coming to the United States to be adopted by a United States citizen (hereinafter referred to as adoptive children), subject to criteria prescribed by the Secretary of State. More than 350 American families have successfully adopted children from the Democratic Republic of the Congo. However, since September 25, 2013, some families have not been able to bring their adoptive children home to the United States because the Democratic Republic of the Congo suspended the issuance of “exit permits” for these children. As the permit suspension drags on, however, American families are repeatedly paying visa renewal and related fees, while also continuing to be separated from their adoptive children. The waiver or refund provides “support and relief to American families seeking to bring their adoptive children from the Democratic Republic of the Congo home to the United States, and would also provide relief to similarly situated adoptive families should barriers arise in other countries in the future.” See 161 Cong. Rec. S2796-01.

The Department is amending current rules regarding immigrant visa fees found in §§ 22.1, 42.71(b) and 42.74 of 22 CFR in order to implement the Act. Thus, the current text of § 42.71(b) will become § 42.71(b)(1) and a new paragraph (b)(2) will set forth the requirements for the waiver or refund of immigrant visa fees for adoptive families who must renew a visa for an adoptive child who, through no fault of the parent(s) or child, is unable to travel to the United States. If an immigrant visa was issued on or after March 27, 2013 and an adoptive child was unable to use that visa as a direct result of extraordinary circumstances beyond the control of the adoptive child or adoptive parent(s), such as denial of an exit permit, the adoptive child, adoptive parent(s), or their representative may request a waiver or refund of the immigrant visa fee relating to a replacement of such visa. All other visa replacement requirements still apply. This rule also adds this exemption to the Schedule of Fees at 22 CFR 22.1 and adds a paragraph at § 42.74(a)(3) on replacement immigrant visas for adoptive children covered by the Act.

In addition to implementing the Act, this rule also updates existing regulations regarding immigrant visa application procedures to more accurately reflect new technologies, application forms, and procedures that have been implemented in recent years. Obsolete language in §§ 42.71, 42.73, and 42.74 regarding discontinued immigrant visa issuance procedures and outdated forms has been deleted. Superfluous language in § 42.71 related to an outdated procedure has been removed. Both §§ 42.73 and 42.74 have been reorganized for readability and § 42.73 has been revised to more closely track the equivalent provision to procure issuance of nonimmigrant visas at § 41.113. In addition, language related to the locations of specific immigrant visa content on the Department's websites has been deleted, as websites and their content are generally subject to frequent reorganization and other changes. More specific guidance is available in Volume 9 of the Foreign Affairs Manual (see fam.state.gov) and on travel.state.gov.

Regulatory Findings

Administrative Procedure Act

The Department is publishing this rule as a final rule, with an effective date less than 30 days from the date of publication, based on the “good cause” exceptions set forth at 5 U.S.C. 553(b)(3)(B) and 553(d)(3). The Department is issuing this final rule with an effective date on the date of publication. The APA permits a final rule to become effective fewer than 30 days after the publication if the issuing agency finds good cause. 5 U.S.C. 553(d)(3). The Department finds that good cause exists for an early effective date in this instance because Congress has already mandated that, subject to criteria prescribed by the Secretary of State, the visa fees for certain lawfully adopted children may be waived, or, if paid, may be refunded. This rulemaking implements the Congressional mandate.

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 Act (5 U.S.C. 603 and 604). Because this rule is exempt, the Department did not conduct an economic analysis of the impact on small entities.

Unfunded Mandates Reform Act of 1995

The Unfunded Mandates Reform Act of 1995 (codified at 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.

Small Business Regulatory Enforcement Fairness Act of 1996

This rule is not a major rule as defined by 5 U.S.C. 804(2).

Executive Orders 12866 and 13563

The Department has considered this rule in light of Executive Orders 12866 and 13563 and affirms that this regulation is consistent with the guidance therein. The Office of Management and Budget has designated this rule not significant for purposes of E.O. 12866. The Department does not consider this rule to be an economically significant rulemaking action.

Executive Orders 12372 and 13132

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. The rule will not have federalism implications warranting the application of Executive Orders 12372 and 13132.

Executive Order 13771—Reducing Regulation and Controlling Regulatory Costs

This rule is not subject to the requirements of E.O. 13771 (82 FR 9339, February 3, 2017) because it is not significant under E.O. 12866.

Executive Order 13175

The Department has determined that this rulemaking will not have tribal implications, will not impose substantial direct compliance costs on Indian tribal governments, and will not pre-empt tribal law. Accordingly, the requirements of Executive Order 13175 do not apply to this rulemaking.

Executive Order 12988

The Department has reviewed the regulation in light of sections 3(a) and 3(b)(2) of Executive Order 12988 to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burden.

Paperwork Reduction Act

This rule does not impose any new information collection requirements under the provisions of the Paperwork Reduction Act, 44 U.S.C. chapter 35. The Office of Information and Regulatory Affairs previously approved the application for a refund under the Adoptive Family Relief Act (OMB Control No. 1405-0223).

List of Subjects in 22 CFR Parts 22 and 42

• Consular services
• Fees
• Passports and visas

Accordingly, for the reasons stated in the preamble, 22 CFR parts 22 and 42 are amended as follows:

PART 22—SCHEDULE OF FEES FOR CONSULAR SERVICES—DEPARTMENT OF STATE AND FOREIGN SERVICE

1. The authority citation for part 22 is revised to read as follows:

Authority: 8 U.S.C. 1101 note, 1153 note, 1157 note, 1183a note, 1184(c)(12), 1201(c), 1351, 1351 note, 1714, 1714 note; 10 U.S.C. 2602(c); 22 U.S.C. 214, 214 note, 1475e, 2504(h), 2651a, 4206, 4215, 4219, 6551; 31 U.S.C. 9701; E.O. 10718, 22 FR 4632 (1957), 3 CFR, 1954-1958 Comp., p. 382; E.O. 11295, 31 FR 10603 (1966), 3 CFR, 1966-1970 Comp., p. 570.

2. Section 22.1 is amended by adding item 32(e) to read as follows:

PART 42—VISAS: DOCUMENTATION OF IMMIGRANTS UNDER THE IMMIGRATION AND NATIONALITY ACT, AS AMENDED

3. The authority citation for part 42 is revised to read as follows:

Authority: 8 U.S.C. 1104 and 1182; Pub. L. 105-277, 112 Stat. 2681; Pub. L. 108-449, 118 Stat. 3469; The Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (done at the Hague, May 29, 1993), S. Treaty Doc. 105-51 (1998), 1870 U.N.T.S. 167 (Reg. No. 31922 (1993)); 42 U.S.C. 14901-14954 (Pub. L. 106-279, 114 Stat. 825); 8 U.S.C. 1101 (Pub. L. 111-287, 124 Stat. 3058); 8 U.S.C. 1154 (Pub. L. 109-162, 119 Stat. 2960); 8 U.S.C. 1201 (Pub. L. 114-70, 129 Stat. 561).

4. Section 42.71 is revised to read as follows:

5. Section 42.73 is revised to read as follows:

6. Section 42.74 is revised to read as follows: