7 April 1998
Source: http://www.access.gpo.gov/su_docs/aces/aaces002.html

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[Federal Register: April 7, 1998 (Volume 63, Number 66)]
[Rules and Regulations]
[Page 16892-16895]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07ap98-14]

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DEPARTMENT OF STATE

22 CFR Part 41

[Public Notice 2773]


Documentation of Nonimmigrants Under the Immigration and
Nationality Act, as Amended--Border Crossing Identification Cards

AGENCY: Bureau of Consular Affairs, State.

ACTION: Interim rule with request for comments.

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SUMMARY: This rule amends Department of State regulations pertaining to
the nonimmigrant border crossing identification card (BCC) and those
pertaining to the requirements for entry of Mexican nationals into the
United States. The rule is necessitated, in part, by a change in the
law, which now specifies that regulations pertaining to the BCC contain
a requirement for the inclusion of a machine-readable biometric
identifier in such cards. The rule provides authority for consular
officers to issue to Mexican citizens who are residents of Mexico a
combined B-1/B-2 visa and border crossing card (B-1/B-2 Visa/BCC) as a
stand-alone card containing a machine-readable biometric identifier. In
addition, it also specifies the conditions under which the new stand-
alone card will be considered invalidated, and it waives the
requirement for the presentation of a passport for certain applicants
for the card. This rule also includes a waiver of the visa and passport
requirement for Mexican nationals entering the United States for the
purpose of obtaining official Mexican documents from a Mexican consular
office on the United States side of the border. Finally, the rule
adopts changes to the regulations pertaining to the issuance and
revocation of Canadian border crossing cards made necessary by the same
change in law.

DATES: This interim rule is effective April 1, 1998. Written comments
are invited and must be received on or before June 8, 1998.

ADDRESS: Written comments may be submitted, in duplicate, to the Chief,
Legislation and Regulations Division, Visa Services, Department of
State, Washington, DC 20520-0106.

FOR FURTHER INFORMATION CONTACT: H. Edward Odom, Chief, Legislation and
Regulations Division, Visa Services, Department of State, Washington,
DC 20520-0106, (202) 663-1204.

SUPPLEMENTARY INFORMATION: Section 104 of Pub. L. 104-208 (September
30, 1996) added to the definition of ``border crossing identification
card'' (BCC) at section 101(a)(6) of the Immigration and Nationality
Act (INA) a requirement that the regulations pertaining to the BCC
include a requirement for the BCC to contain a machine-readable
biometric identifier. This amendment has led to a determination by the
Department of State and the INS that the combined B-1/B-2 Visa/BCC,
which is currently stamped into passports pursuant to 22 CFR 41.32(b),
should become a

[[Page 16893]]

biometric-inclusive card issued solely by consular officers stationed
in Mexico. Thus, as of April 1, 1998, a combined B-1/B-2 Visa/BCC will
no longer be issued by consular officers in Canada to permanent
residents of Canada. The Department of State and the INS have further
agreed that the INS will cease issuance of all BCCs as of April 1,
1998. Thus, in Canada, after April 1, 1998, only B-1/B-2 visas issued
by consular officers will be available to qualified applicants. This
rule is intended, in part, to replace the current sections 41.32 and
41.33 as of April 1, 1998.
    Pursuant to INA 212(d)(4) the Department of State and the INS have
also agreed to waive the passport requirement contained in INA
212(a)(7)(B)(i) for certain applicants for the new B-1/B-2 Visa/BCC.
This agreement is reflected in the new language of section 41.32.
Similarly, the Department of State and the INS have also agreed to
waive the visa and passport requirement for Mexican nationals entering
the United States solely for the purpose of obtaining a Mexican
passport or other official Mexican document from a Mexican consular
office on the United States side of the border. While this agreement is
currently reflected in the regulations of the INS, it is being included
in the regulations of the Department of State for the first time as an
amendment to Sec. 41.2.
    Former subsection 41.32(a), which related to stand-alone BCCs
issued by the Service has been removed in its entirety. Former
subsection 41.32(b) has been largely revised to include both the
requirement for a machine-readable biometric identifier and to
distinguish between whether the application is for a first time B-1/B-2
Visa/BCC or is for a replacement. Renumbered and revised subsection
41.32(a)(2)(iii) eliminates the requirement for presentation of a
Mexican passport for those seeking a B-1/B-2 Visa/BCC replacement for
previously issued documentation, provided that the previously issued
visa and/or BCC has not been voided by operation of law or revoked by a
consular or immigration officer.
    This rule provides that current BCCs (either stand-alone BCC's or
the BCC portion of a B-1/B-2 Visa/BCC) shall expire on the date of
expiration noted therein (if any) and, in any event, shall not be valid
for admission to the United States on or after October 1, 1999, or
whatever other date may be enacted for required use of a card
containing a machine readable biometric identifier for entry. Other
than the exemption from presentation of a passport for those applying
for replacement cards, the requirements relating to procedures for
application are the same as those in the current regulation. The format
formerly described in 41.32(b)(3) has changed from a stamp in a
passport to that of a stand-alone card, but one containing essentially
the same kind of identifying information. The cards will have a
specific validity. Provisions for revocation or voidance of the
document generally are those currently in effect, except that the BCC
or B-1/B-2 Visa/BCC of an alien who otherwise would be subject to INA
222(g) pertaining to overstay on a nonimmigrant visa will be void.
Further, specific authority has been added for the revocation of a BCC
or B-1/B-2 Visa/BCC when the holder ceases to maintain a residence in
or the citizenship of Mexico or ceases to be a permanent resident of
Canada.

Regulatory Analysis and Notices

Interim Rule

    This rule is being published as an interim rule with a comment
period pursuant to the ``good cause'' exceptions set forth at 5 U.S.C.
553(b)(3)(B) and 553(d)(3). This is due to the fact that Sec. 104 of
Pub. L. 104-208 (September 30, 1996), pursuant to which certain changes
in the procedures for issuance of entry documentation to aliens are
required, becomes effective on April 1, 1998. Therefore, delay in the
publication of this rule would interfere with the fulfillment of the
statutory requirements imposed upon the Department of State by that
section.

The Regulatory Flexibility Act

    Pursuant to Sec. 605(b) of the Regulatory Flexibility Act, the
Department has assessed the potential impact of this rule and it has
been determined, and the Assistant Secretary for Consular Affairs
hereby certifies, that it will not have a significant economic impact
on a substantial number of small entities. The rule has no economic
effect beyond that of the statutory requirements already in effect,
which it implements.

5 U.S.C. Chapter 8

    As required by 5 U.S.C. chapter 8, the Department has screened this
rule and determined that it is not a major rule, as defined in 5 U.S.C.
80412.

Paperwork Reduction Act

    The Department of State, Bureau of Consular Affairs, Visa Services
has received OMB emergency clearance for the information collection
instrument, Nonimmigrant Visa Application (OF-156), that underlies the
nonimmigrant border crossing identification card (BCC) contained in
this rule. It is estimated that 300,000 OF-156s will be completed
annually to support the issuance of BCCs, and that (at one hour per OF-
156) this will require 300,000 hours of the time of aliens. Comments
regarding OF-156 information collections in support of this rule should
be identified as such and should be directed to Charles S. Cunningham,
Directives Management Branch, U.S. Department of State, Washington,
D.C. 20520, (202) 647-0596. Such comments should be received within 60
days of publication of this rule.

E.O. 12988 and E.O. 12866

    This rule has been reviewed as required by E.O. 12988 and
determined to meet the applicable regulatory standards it describes.
Although exempted from E.O. 12866, this rule has been reviewed to
ensure consistency with it.

List of Subjects in 22 CFR Part 41

    Aliens, Nonimmigrants, Passports and visas, Temporary visitors.

    For the reasons stated in the preamble, the Department of State
amends 22 CFR part 41 as set forth below:

PART 41--[AMENDED]

    1. The authority citation for part 41 continues to read as follows:

    Authority: 8 U.S.C. 1104.

    2. Section 41.2 is amended by redesignating paragraphs (g)(3) and
(4) as paragraphs (g)(5) and (6), respectively, and adding new
paragraphs (3) and (4) to read as follows:

Sec. 41.2  Waiver by Secretary of State and Attorney General of
passport and/or visa requirements for certain categories of
nonimmigrants.

* * * * *
    (g) Mexican nationals. * * *
    (3) A visa and a passport are not required of a Mexican national
who is entering solely for the purpose of applying for a Mexican
passport or other official Mexican document at a Mexican consular
office on the United States side of the border.
    (4) A passport is not required of a Mexican national who is
applying for a B-1/B-2 Visa/BCC and who meets the conditions for waiver
of the passport requirement in section 41.32(a)(2)(iii).
* * * * *
    3. Section 41.32 is revised to read as follows:

Sec. 41.32  Nonresident alien Mexican border crossing identification
cards; combined border crossing identification cards and B-1/B-2
visitor visas.

    (a) Combined B-1/B-2 visitor visa and border crossing
identification card (B-1/

[[Page 16894]]

B-2 Visa/BCC).--(1) Authorization for issuance. Consular officers
assigned to a consular office in Mexico designated by the Deputy
Assistant Secretary for Visa Services for such purpose may issue a
border crossing identification card, as that term is defined in INA
101(a)(6), in combination with a B-1/B-2 nonimmigrant visitor visa (B-
1/B-2 Visa/BCC), to a nonimmigrant alien who:
    (i) Is a citizen and resident of Mexico;
    (ii) Seeks to enter the United States as a temporary visitor for
business or pleasure as defined in INA 101(a)(15)(B) for periods of
stay not exceeding six months;
    (iii) Is otherwise eligible for a B-1 or B-2 temporary visitor visa
or is the beneficiary of a waiver under INA 212(d)(3)(A) of a ground of
ineligibility, which waiver is valid for multiple applications for
admission into the United States and for a period of at least ten years
and which contains no restrictions as to extensions of temporary stay
or itinerary.
    (2) Procedure for application. Application for a B-1/B-2 Visa/BCC
shall be made by a Mexican applicant at any U.S. consular office in
Mexico designated by the Deputy Assistant Secretary of State for Visa
Services pursuant to paragraph (a) of this section to accept such
applications. The application shall be submitted on Form OF-156. The
application shall be supported by:
    (i) Evidence of Mexican citizenship and residence;
    (ii) One photograph of the size specified in the application, if 16
years of age or older; and
    (iii) A valid Mexican Federal passport, unless the applicant is the
bearer of a currently valid or expired United States visa or BCC or B-
1/B-2 Visa/BCC which has neither been voided by operation of law nor
revoked by a consular or immigration officer. BCCs which after October
1, 1999, or such other date as may be enacted, are no longer useable
for entry due only to the absence of a machine readable biometric
identifier shall not be considered to have been voided or revoked for
the purpose of making an application under this section.
    (iv) A digitized impression of the prints of the alien's index
fingers.
    (3) Personal appearance. Each applicant shall appear in person
before a consular officer to be interviewed regarding eligibility for a
visitor visa, unless the consular officer waives personal appearance.
    (4) Issuance and format. A B-1/B-2 Visa/BCC issued on or after
April 1, 1998, shall consist of a card, Form DSP-150, containing a
machine-readable biometric identifier. It shall contain the following
data:
    (i) Post symbol;
    (ii) Number of the card;
    (iii) Date of issuance;
    (iv) Indicia ``B-1/B-2 Visa and Border Crossing Card'';
    (v) Name, date of birth, and sex of the person to whom issued; and
    (vi) Date of expiration.
    (b) Validity. A BCC previously issued by a consular officer in
Mexico on Form I-186, Nonresident Alien Mexican Border Crossing Card,
or Form I-586, Nonresident Alien Border Crossing Card, is valid until
the expiration date on the card (if any) unless previously revoked, but
not later than the date, currently October 1, 1999, on which a machine
readable biometric identifier in the card is required in order for the
card to be usable for entry. The BCC portion of a B-1/B-2 Visa/BCC
issued to a Mexican national pursuant to provisions of this section
contained in the 22 CFR, parts 1 to 299, edition revised as of April 1,
1998 is valid until the date of expiration, unless previously revoked,
but not later than the date, currently October 1, 1999, on which a
machine readable biometric identifier in the card is required in order
for the card to be usable for entry.
    (c) Revocation. A BCC issued in Mexico on Form I-186 or Form I-586
or a B-1/B-2 Visa/BCC issued at any time by a consular officer in
Mexico, under provisions contained in the 22 CFR, parts 1 to 299,
edition revised as of April 1, 1998 of this section, may be revoked at
any time under the provisions of Sec. 41.122 or upon a determination by
a consular or immigration officer that the alien to whom any such
document was issued has ceased to be a resident and /or a citizen of
Mexico. Upon revocation, the consular or immigration officer shall
notify the issuing consular or immigration office and if the revoked
document is a card, the consular or immigration officer shall take
possession of the card and physically cancel it under standard security
conditions. If the revoked document is a stamp in a passport the
consular or immigration officer shall write or stamp ``canceled'' on
the face of the document.
    (d) Voidance.
    (1) The voiding pursuant to INA 222(g) of the visa portion of a B-
1/B-2 Visa/BCC issued at any time by a consular officer in Mexico under
provisions of this section contained in the 22 CFR, parts 1 to 299,
edition revised as of April 1, 1998, also voids the BCC portion of that
document.
    (2) A BCC issued at any time by a consular officer in Mexico under
any provisions of this section contained in the 22 CFR, parts 1 to 299,
edition revised as of April 1, 1998, is void if a consular or
immigration officer determines that the alien has violated the
conditions of the alien's admission into the United States, including
the period of stay authorized by the Attorney General.
    (3) A consular or immigration officer shall immediately take
possession of a card determined to be void under paragraphs (d) (1) or
(2) of this section and physically cancel it under standard security
conditions. If the document voided in paragraphs (d) (1) or (2) is in
the form of a stamp in a passport the officer shall write or stamp
``canceled'' across the face of the document.
    (e) Replacement. When a B-1/B-2 Visa/BCC issued under the
provisions of this section, or a BCC or B-1/B-2 Visa/BCC issued under
any provisions of this section contained in the 22 CFR, parts 1 to 299,
edition revised as of April 1, 1998, has been lost, mutilated,
destroyed, or expired, the person to whom such card was issued may
apply for a new B-1/B-2 Visa/BCC as provided in this section.
    4. Section 41.33 is revised to read as follows:

Sec. 41.33  Nonresident alien Canadian border crossing identification
card (BCC).

    (a) Validity of Canadian BCC. A Canadian BCC or the BCC portion of
a Canadian B-1/B-2 Visa/BCC issued to a permanent resident of Canada
pursuant to provisions of this section contained in the 22 CFR, parts 1
to 299, edition revised as of April 1, 1998, is valid until the date of
expiration, if any, unless previously revoked, but not later than the
date, currently October 1, 1999, on which a machine readable biometric
identifier is required in order for a BCC to be usable for entry.
    (b) Revocation of Canadian BCC. A BCC or a B-1/B-2 Visa/BCC issued
by a consular officer in Canada at any time under provisions of this
section contained in the 22 CFR, parts 1 to 299, edition revised as of
April 1, 1998, may be revoked at any time by a consular or immigration
officer under the provisions of Sec. 41.122 or upon a determination
that the alien to whom any such document has been issued has ceased to
be a permanent resident of Canada. Upon revocation, the consular or
immigration officer shall notify the issuing consular office and if the
revoked document is a card, the consular or immigration officer shall
take possession of the card and physically cancel it under standard

[[Page 16895]]

security conditions. If the revoked document is a stamp in a passport
the consular or immigration officer shall write or stamp ``canceled''
on the face of the document.
    (c) Voidance. (1) The voiding pursuant to INA 222(g) of the visa
portion of a B-1/B-2 Visa/BCC issued at any time by a consular officer
in Canada under provisions of this section contained in the 22 CFR,
parts 1 to 299, edition revised as of April 1, 1998, also voids the BCC
portion of that document.
    (2) A BCC issued at any time by a consular officer in Canada under
any provisions of this section contained in the 22 CFR, parts 1 to 299,
edition revised as of April 1, 1998, is void if it is found by a
consular or immigration officer that the alien has violated the
conditions of the alien's admission into the United States, including
the period of stay authorized by the Attorney General.
    (3) A consular or immigration officer shall immediately take
possession of a card determined to be void under paragraphs (c) (1) or
(2) of this section and physically cancel it under standard security
conditions. If the document voided under paragraphs (c) (1) or (2) is
in the form of a stamp in a passport the officer shall write or stamp
``canceled'' across the face of the document.
    5. Section 41.122 is amended by adding a new paragraph (a) (4) and
new paragraph (h) (9) to read as follows:

Sec. 41.122  Revocation of visas.

    (a) Grounds for revocation by consular officers. * * *
* * * * *
    (4) The visa has been issued in a combined Mexican or Canadian B-1/
B-2 visa and border crossing identification card and the officer makes
the determination specified in Sec. 41.32(c) with respect to the
alien's Mexican citizenship and/or residence or the determination
specified in Sec. 41.33(b) with respect to the alien's status as a
permanent resident of Canada.
* * * * *
    (h) Revocation of visa by immigration officer. * * *
    (9) The visa has been issued in a combined Mexican or Canadian B-1/
B-2 visa and border crossing identification card and the officer makes
the determination specified in Sec. 41.32(c) with respect to the
alien's Mexican citizenship and/or residence or the determination
specified in Sec. 41.33(b) with respect to the alien's status as a
permanent resident of Canada.

    Dated: April 1, 1998.
Mary A. Ryan,
Assistant Secretary for Consular Affairs.
[FR Doc. 98-9084 Filed 4-6-98; 8:45 am]
BILLING CODE 4710-06-P
